source: Caselaw Access Project

author: T. R. Strong, J.

license: Public Domain

text:
    Supreme Court. At Chambers, Rochester,
    October 2, 1858.
    Before T. R. Strong, Justice.
    Ira Stout plaintiff in error, v. The People, defendants in error.
    A writ of error, to review in the Court of Appeals a judgment réndered itt the Supreme Court, on Sn indictment for a capital offence, cannot be issued’, unless allowed by a judge of the Court of Appeals, or justice of the Supreme Court, or a county judge; and such writ of error will not stay or delay the execution of such judgment, or of the sentence thereon, unless it be expressly directed in the allowance that the writ shall operate as a stay of proceedings.
    Such writ ought not to be allowed and the proceedings stayed, unless it is probable an error has been committed, or unless real doubt may well be entertained as to the correctness of the decisions sought to be reviewed.
    A question of fact on a principal challenge, in the absence of consent to a different mode of trial, is properly triable before triers appointed by the court. It is competent, however, for the parties, by consent, to waive the appointment of triers, and submit to the court the question of fact for its decision; and such has become the general practice.
    The determination of the court, on a question of fact thus submitted, cannot be excepted to, and is final. It stands in that respect upon the same footing as if it had been made by triers, and cannot be reviewed on error.
    Mere hypothetical opinions, though legal evidence to be considered on a challenge for favor, will not sustain a challenge for principal cause.
    On the trial of an indictment for murder, evidence on the part of the prosecution of a fact tending to prove a motive for the commission of the homicide, ought to be received, although the fact thus offered to be proved, amount itself to a distinct felony.
    This was an application made at chambers to the Hon. Theron R Strong, one of the justices of the Supreme Court, for the allowance of a writ of error with stay of proceedings. The facts are sufficiently stated in the opinion deciding the application.

      J. N. Pomeroy, for the plaintiff in error.

      C. Huson, Jr. (District Attorney), for the People.
   T. R. Strong, J.

By the Revised Statutes, a writ of error upon a judgment rendered on any indictment for a capital offence, cannot be issued unless allowed by one of the justices of the Supreme Court; and a writ of error, when allowed, will not stay or delay the execution of such judgment, or of the sentence thereon, unless it be expressly ¡directed in the allowance that the writ is to operate as a stay of proceedings. (2 B. S., 740, §§ 14,15.) Under the judiciary act of 1847, the power to allow the writ and direct a stay of proceedings, is extended to a judge of the Court of Appeals and to a county judge. (1 Laws 1847, 322, .§ 11.) The rule of decision upon an application for the allowance of the writ and a stay of proceedings, is not prescribed by statute, but I think the opinion of the Legislature, as to the proper rule in the case, is to be found in the provision of the statute for a stay of proceedings on exceptions taken in the Court of Oyer and Terminer, or Court of Sessions, on the trial of an indictment. That provision is, that a bill of exceptions being settled and signed, if the officer specified in the statute shall certify on such bill, “that, in his opinion, there is probable cause for the same, or so much doubt as to render it expedient to take the judgment of the Supreme Court thereon, such certificate, on being filed with the clerk of the court, shall stay judgment on such indictment until the decision,of the Supreme Court taken upon such exception.” (2 B. S., 736, § 23.) The rule here given is a reasonable one to adopt in cases like the-present, refusing, as it does, the allowance of a review of decisions upon points which are -frivolous, or clearly untenable, and at .the same time permitting the re-examination of questions, in relation to which there is ground for fair doubt and difference of opinion. The policy of the requirement of an allowance of a writ of error to warrant .the issuing of it, and of an-express direction of the officer allowing the writ that the writ be a stay of proceedings, to give it that effect, is, doubtless, that the writ may not be made a means of useless and injurious delay of execution of the judgment. Where it is probable an error has been committed, or real doubt may well be entertained , as to the correctness of decisions which it is sought to have reviewed, the writ is to be allowed and the order granted; but in no other case.

Taking this rule as a guide, and anxiously desiring to do no injustice to the plaintiff in error, I have carefully examined the grounds of the present application; and I proceed to state briefly my views in relation to them:

1. One of these grounds is an alleged error in sustaining a decision of the court below overruling a challenge to a juror. One Tower, on being called as a juror, was challenged by the defendant below, who is now the plaintiff in error, for principal cause, on the ground that he had formed and expressed an opinion touching the guilt of the prisoner; and the district attorney traversed the challenge. This traverse put in issue the fact alleged in the challenge, and made it necessary to try the question whether the juror had formed such an opinion-The legal mode of trial, in the absence of consent to a different mode, would have been by triers appointed by the court to receive the evidence which should be offered in regard to it, and decide the question. Upon their decision, if the triers found that the juror had formed an opinion in the case, the question of law involved in the challenge, whether the fact of such an opinion constituted a disqualification as a juror, would have been for the court to determine. The decision of the triers as to the fact, would not have been the subject of exception, or review on error; but it would have been otherwise as to the decision by the court on the law arising upon the fact found by the triers. If the triers found against the formation of an opinion by the juror, the challenge would of course have been overruled, as unsupported in fact. It was competent, however, for the parties, by consent, to submit to the court the trial of this question of fact, waiving the appointment of triers; and that has come to be a very general practice, and it appears £0 have been pursued in this case. The effect of referring to the court the ascertainment of the fact on which the challenge rests, in such cases, is that the court is substituted for triers; it is made the trier of the question with the like incidents and consequences as if triers had been appointed by the court, and they had tried the issue. The determination by the court of the fact cannot be excepted to, and is final. But its decision of the question of law on the fact, may be excepted to, and brought under review on error.

The challenge having been traversed as above stated, in support of it, Tower, the juror, was sworn and examined as a witness, and testified: “I have read part of the accounts of the transaction in the newspapers: I think I have an impression as to the defendant’s guilt or innocence; I rather think I have formed an opinion; I presume I have expressed it; I think I retain it." On his cross-examination he testified: “ I formed an opinion if the accounts were true; I rather thought that they were true; so far as I read I gave them credence." On his re-direct examination he testified: “I rather think I believed the accounts true; it might or might not require evidence to remove my impression of the defendant’s guilt." To the court: “ I did not arrive at a definite opinion." ISTo further evidence was given on the challenge. The court thereupon overruled the challenge, to which an exception was taken. The juror was sworn, and sat as such during the trial.

This evidence of the juror presents the state of his mind in regard to an opinion as to the guilt or innocence of the defendant below; the evidence is wholly uncontrovertedr and the only question was, whether the state of the juror’s mind, in respect to such an opinion, as exhibited by this evidence, rendered the juror incompetent. There was no question of fact upon the evidence, but only one of law upon the legal effect of the evidence as to the competency of the juror. This view of the true question on the juror’s testimony, is fully supported by the case of Ex parte Vermilyea and others (6 Cow., 555), and The People v. Vermilyea (7 Cow., 108), and other cases. And in that view, as is above shown, and as was held in the case first cited, the decision of the challenge might legally be excepted to, and be re-examined by a higher tribunal when properly brought before it.

The question of the correctness of the decision overruling the challenge, is therefore fairly in the case, and hence it is necessary to examine it so far as to see whether there is probable cause for believing it erroneous, or there is so much doubt in regard to its accuracy that it is expedient to allow it to be reviewed.

The substance of the testimony of the juror is, that he had read in the papers part of the accounts of the transaction; that so far as he read them he gave them credit; that he formed an opinion in the case dependent on the truth of the accounts, and had expressed it; but it was not a definite opinion. The grammatical and legal import of this testimony, is, that the juror had a hypothetical opinion as to the guilt of the accused; that is, that the accused was guilty if the accounts he had read were true; but whether the accounts were true or not, he had no distinct certain conviction. It expresses a state of mind which would be produced in any intelligent man, a stranger to a transaction and the parties connected with it, in regard to the facts of the case, who should read in a book or newspaper an account of the case supporting those facts, and apparently entitled to credit. The account would be received as true, and a conclusion formed from it, if true; but this conclusion would depend wholly upon its supposed truth, and as to its truth only a mere supposition would be entertained. This would not ripen into a clear and -fixed conviction, unless verified by satisfactory evidence. The law does not pronounce persons, whose minds are thus affected in respect to a case, disqualified to act as jurors upon the trial of it; and there does not appear to be any good reason why it should do so. There is nothing in that state of mind which necessarily implies bias, and from which the law adjudges the juror not indifferent between the parties. The mind, in such a case, is in a condition to receive and decide impartially upon the evidence presented to it, and that is the material consideration on the trial of a challenge like that in question.

These remarks are made solely in reference to challenges for principal cause, for having formed an opinion, and such is the challenge in the present case. A principal cause of challenge is where the cause affords a manifest presumption of partiality; where the law implies partiality from the ground of challenge, without inquiring, if the ground be proved, whether in fact the juror is biased. It adjudges, from the cause alleged and proved, that he is so, and excludes him as a juror. An opinion to sustain a challenge for principal cause, must be, in the language of the books, a fixed and absolute opinion. It is only opinions of that character which the law regards as necessarily implying partiality. It does not thus regard mere hypothetical opinions. Although opinions of the latter character are legal evidence upon the trial of a challenge for favor, where the question of bias is a question of fact, they do not constitute a principal cause of challenge.

I am satisfied that the opinion proved in support of the challenge in this case, was merely hypothetical; that it did not sustain the challenge, and that the challenge was properly overruled.

The remark of the juror, in the course of his examination as a witness, that “ it might or might not require evidence to remove his impression of the defendant’s guilt,” does not strengthen, but rather weakens, the effect of the whole evidence to sustain the challenge. It shows the juror had no fixed opinion. A fixed opinion would require evidence to remove it. And it was for the party interposing the challenge to prove such an opinion.

2. The only other position urged in support of this application is, that the court below, at the trial, erred in admitting evidence tending to establish an incestuous connection between the accused and his sister, Mrs. Littles. The indictment was against the accused and Mrs. Littles jointly; and evidence was given on the part of the People proving, in addition to the homicide, difficulties between Mrs. Littles and her husband, upon whom it was alleged in the indictment the crime was committed, and implicating both the defendant below and Mrs. Littles in the killing of the deceased, after which the district attorney put the following question to a witness: “Do you know whether Ira and Mrs. Littles eyer slept together ?” This question was objected to; the objection was overruled, and an exception taken. Evidence was then given on the part of the People that Ira and Mrs. Littles were in bed together on different occasions, and that on one occasion the deceased saw them in that situation, and made no complaint.

The object of this evidence manifestly was, to prove a motive in the mind of the defendant below to take the life of the deceased; that the homicide was premeditated by him, and therefore that his participation in it was murder.. It is" very clear, I think, that the evidence strongly tended to establish that part of the case, and was rightly received for the consideration of the jury. If the relation of brother and sister had not existed between the defendant below and Mrs. Littles, no question could exist, as the case stood when the evidence was allowed, as to the right of the People to prove illicit intercourse between them for the purpose to which the evidence under consideration was offered, whether the deceased knew of it or not. The motive which it tended to prove was, to remove the deceased out of the way, to relieve Mrs. Littles from her difficulties with him, and to afford more full and free and safe opportunity to him for vicious intercourse with her. I am not able to perceive how the fact of that relationship can vary the case as to the propriety of such evidence. The evidence was of the same character as that received to prove the difficulties referred to, and the nature and extent of them. Any evidence proving the relations of intimacy between the defendant below and his sister, was clearly competent on this question of motive, as tending to show influences on his mind to aid her in her troubles, and for that purpose to commit the offence charged. The weight of this evidence was for the jury; it was admissible as tending to prove an important fact in the case; but it was the duty of the court in charging the jury, to submit, in connection with the evidence, proper instructions, limiting its effect to the point upon which it was received. There is no complaint that such instructions were not given.

Upon neither of the grounds on which this application is based, is the case, in my judgment, brought within the rule above stated, as proper to control the decision as to the allowance of a writ of error. I am constrained, therefore, to decline to allow the writ.


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

text:
    Supreme Court. New York General Term,
    November, 1858.

      Davies, Sutherland and Hogeboom, Justices.
    Peter Francisco, plaintiff in error, v. The People, defendants in error.
    A pilot, within the meaning of chap. 69 of the Laws of 1841, regulating Hell-gate pilots, is the person piloting and directing the vessel while on board of it. t is no offence against the act for the pilot of a steam tug to take a schooner through Hellgate, lashed to the side of the steam tug, the pilot of the steam tug remaining on his own steamer, and making signals to those on hoard the schooner to change their helm to conform to the movements of the steamer.
    It is erroneous, in such a case, to charge, that in so towing the schooner through Hellgate the pilot of the steam tug was committing an act of pilotage.
    Steamboats have a right to tow vessels through Hellgate without being subject to the law relating to pilotage, being excepted from its operation by the 10th section of the act of 1841.
    Certiorari to the General Sessions of the Peace of the city and county of New York.
    The plaintiff in error was the pilot of the steam tug H. Minturn, and was indicted and convicted in the court below of a misdemeanor, in violating the provisions of the statute that prohibits any person, except a licensed pilot, piloting a vessel through Hellgate. It was proved on the trial that on the 7th of May, 1857, two schooners, the George and the Humming Bird, were lashed to the steam tug Minturn, one on each side, and thus taken through Hellgate by the defendant, he being on the steamboat piloting it, and making signals to those on board the schooners to change their helms to conform to the movements of the steamer.
    The counsel for the defendant asked the Recorder to charge the jury that if they believed the act done by the defendant on this occasion was one of towage only, that the defendant must be acquitted, for the offence was not one contemplated by the act. The judge so charged, but with this qualification, that if the defendant directed and controlled the movements of the steamer, and was the controlling spirit, then the act was one of pilotage, to which the defendant’s counsel excepted.
    The counsel for the defendant also asked the Recorder to charge that the steam tug Minturn, being a steamboat propelled by steam, had a right to tow vessels through Hellgate without being subject to the laws relating to pilotage. The Recorder refused so to charge, and the defendant’s counsel excepted.

      D. McMahon, for the defendant

      John McKeon, for the People.
   By the Court, Davies, P. J.

The appellant was indicted in the General Sessions, and convicted of a misdemeanor, in violating the provisions of chap. 69, Laws of 1847, relating to the Hell-gate pilots.

That act provides that there shall be appointed by the Governor and Senate, fit.and proper persons to act as pilots for the safe pilotage of vessels through the channel of the East river, commonly called Hellgate. The act provides for compensation for such service, and also provides that any pilot who shall first tender his services to any vessel passing through the gate, and whose services shall not be accepted, shall be entitled to demand and receive half-pilotage.

The act further provides, that if any person other than a Hellgate pilot shall pilot for any other person any vessel of any description through the channel of the East river, commonly called Hellgate, he shall forfeit and pay the sum of thirty dollars for each offence, or, on conviction thereof, shall be deemed guilty of a misdemeanor, and shall be punished as such; and the act also declares that it shall not.be construed as applying to steamboats.

It is conceded that the piloting of the steamer was no offence under the act, for it is expressly excepted from its provisions. .But it is insisted, on the part of the People, that the act of taking the two schooners through the channel in the manner stated, was an act of pilotage within the meaning of the act, and which it has made an offence.

The duties of the pilots authorized by the acts to be appointed and to act as pilots, for the safe pilotage of vessels through the channel commonly called Hellgate, are prescribed by law; and any person not such pilot, who shall pilot any vessel, is made subject to the penalties of the act. Bouvier's Law Dictionary (vol. 2, 337) defines a pilot to be: first, an officer serving on board of a ship during the course of a voyage, and having the charge of the helm and of the ship’s route; and secondly, an officer authorized by law, who is taken on board at a particular place for the purpose of conducting a ship through a river, road or channel, or from or into a port.

This definition would seem to carry the idea that the pilot is to be put on board the ship piloted—that he is not, in the legal sense, a pilot unless on board the ship which he is conducting through a river or channel. Could he be said to be a pilot if he stood on the shore and directed the course of the vessel by signals, or ran along the banks of the stream and by words or signs controlled and directed the course of the vessel navigating the stream ? We think not; and that the intendment of the act was to apply to the pilots on board, piloting and directing the ship or vessel while on board of it. The defendant was conducting the steam-tug through the channel of the Bast river, as he lawfully might do. The two Schooners which "it is claimed he piloted, were lashed to the steamboat, and must necessarily obey its every motion. As a consequence, they were piloted through the channel, and so they would have been if placed on the deck of the steamer. It is true the persons on the schooners had to obey and did obey signals given to them by the defendant while on board the steamer. He might have given the same if on the land; but we do not see that this circumstance determines that he was piloting the schooners.

We have not seen any decision of our courts upon the proper construction to be given to this statute, upon the point now presented for consideration. But a case has been decided by the English Court of Exchequer, upon a similar statute, which seems to us of high authority and quite controlling. The language of the English' statute is (6 Geo., 4dh chap. 125, §70): “Every person assuming or continuing to act in the charge or conduct of any ship or vessel, without being a licensed pilot, after any licensed pilot shall have offered to take charge of such ship or-vessel, shall forfeit,” &c.

It will be seen that the language of this statute is more comprehensive than ours, and is not so technical in the terms used. Cursis “to pilot,” or “piloting;” theirs, “to act in the charge or conduct of any ship or vessel.” Reilly v. Scott (7 Meeson & Welshy's Rep., 93), was an action to recover a penalty incurred under this statute, for doing an act like that for which the defendant in this case has been convicted of a misdemeanor.

Baron Parke, in delivering the opinion of the court, says: “ The first question arising in this case is, whether the defendant had charge of the ship within the meaning of the pilot act. We are of the cpnion that he had not. These words are to be understood in the sense ascribed to them in other parts of the act; that is, they mean the taking the charge and direction os a pilot, whose appropriate and indeed sole duty is to select the course and take the management and conduct of the vessel, for the purpose of directing her in that course. The master of a coasting vessel may, if he please, perform that duty himself; but if he chooses to employ another for that purpose, he must employ a licensed pilot, and an unlicensed pilot, taking that duty on himself, by command of the master, when a licensed pilot offers his services, would be liable to the penalty in the 70th section.

But the master is not precluded from employing any moving power he may please; he may make use of another vessel or boat, or steam-tug, for that purpose; and if that cannot be done without necessarily devolving upon those who may apply the power, the selection of the course and a certain position, or indeed, all' the charge and conduct of the vessel in that course; still, if the Iona fide object of the employment be the moving power, the person so employed is not a pilot, and has not the conduct and charge of the vessel, as such, within the meaning of the act. If, indeed, the real object, in any case, should appear to be to obtain the assistance of the skill of a pilot, and to give Mm the charge and conduct of the vessel under some colorable duty then assigned to him, the case would be witMn the act; but in the present instance, it is expressly found that the steam-tug was Iona fide hired for the purpose of conducting the vessel into the river, and the court, in that case, hold that no penalty was incurred.

It was assumed oh the trial of the defendant, that he was engaged in the business of towage. If not, the fifth and sixth requests of the defendant to the judge raised the question, and brought the case within thatm the English Exchequer. The fifth request was, that if the jury believed that the act done by the defendant on this occasion was of towage only, the defendant must be acquitted, for that offence was not contemplated by the act, and the judge charged, with tMs qualification, that if the-defendant directed and controlled the movements of the steamer, and was the controlling spirit, then Ms act is one of pilotage. To tMs the defendant excepted, and in holding that the defendant, while controlling the movements of the tug, and its master spirit, was committing an act of pilotage, we think the learned Recorder erred. So, also, we think he erred in refusing to charge that the steam-tug Mintum, being a steamboat propelled by steam, had a right to tow vessels through Hell-gate, without being subject to the laws relating to pilotage, and that, by the tenth section of the act of 1847, steamboats were excepted from its operation. We tMnk that, upon the facts proved, the defendant has not been guilty of any offence under the act of 1847, and that there was error in refusing to charge in the particulars mentioned, as requested, and that consequently the conviction must be reversed.

Judgment reversed, and a new trial ordered.


author: Mullin, J.

text:
    New York Oyer and Terminer.
    November, 1858.
    Before Mullin, Justice of the Supreme Court.
    The People v. Fernando Wood and sixty-one others.
    Giving a lease of real estate belonging to the corporation of the city of New York, for a longer period, than ten years, or without having complied with the provisions of the 41st section of the amendment to the charter of the city of New York, passed in 1851 {ch. 446), is the violation of such charter within the meaning of the 40 th section of said act, and punishable as a misdemeanor.
    The mayor, aldermen and councilmen of the city of New York, are officers of the city government within the meaning of the said 40th section, and, as such, are liable to indictment for willfully doing the acts forbidden by that section, and which are therein declared to be misdemeanors.
    A conspiracy by such officers to give a lease in violation of the provisions of such charter, is a misdemeanor; but it is not a misdemeanor, under the said 40th Section, for such officers to vote for and pass a resolution directing the comptroller of the city to lease real estate of the corporation fbr a longer term than ten years, such voting of itself not being an unlawful act, and the statute providing that no aldermen or councilmen shall be questioned in any other place for any speech or vote in either board.
    Where a count in an indictment against the mayor, aldermen and councilmen of the city of New York, charged that the defendants “ did violate and evade the provisions” of said amended charter, “by voting for and passing a resolution in due form, directing the comptroller to lease ” certain real estate of the corporation to the Roman Catholic Orphan Asylum for more than ten years, the count was adjudged bad as not charging any offence under the statute.
    This was a motion to quash the indictment, on grounds fully disclosed in the opinion of the court.

      John W. Edmonds, for the defendant.

      Joseph Blunt (District Attorney), for the People.
   Mullin, J.

The importance of the questions presented on the motion to quash the indictment in this case, demands a more careful examination than my engagement will permit me to make. I have been compelled, therefore, to confine my examination to two or three of the questions raised, and those such as affect the substance, rather than the form of the indictment.

I entertain no doubt as to the soundness of the following positions:

First. That the major and common couneilmen of this city are officers of the city government, within the true intent and meaning of the 40th section of the amendment of the charter of said city, passed in 1857.

Second. That, as such officers, they are liable to indictment for willfully doing, or permitting to be done, the acts specified in the said 40th section, which are therein declared to be misdemeanors.

Third. That the last clause of section 8 of the amend ment to the charter, passed in 1857, does not exempt the mayor or the members of the common council from liability for the acts forbidden by section 40 of that act; but the approval of the mayor, or the vote of the couneilmen, does not itself make him or them liable. The offences created by that section, do not consist in approving or voting, but in accomplishing the result prohibited.

Fourth. That giving a lease for a longer period than ten years, or without having complied with the provision of the 41st section of the act of 1857, is a violation of the charter, within the meaning of the 40th section, and punishable as a misdemeanor; and,

Fifth. That a conspiracy by the said officers named in the indictment, to give a lease in violation of the provisions of the charter, is a misdemeanor, and indictable as such.

I will now examine, as briefly as I am able, the several counts of the indictment, in order to ascertain whether they or either of them describe an offence under the statute referred to or at common law. I will first examine the second count. It avers, in substance, that the mayor, aldermen and commonalty is a municipal corporation, and, as such, capable of taking and holding real estate, and of granting leases of and selling the same. That, by the act of 1857, it was declared that no lease of public property thereafter to be given (except as the same might "be required by covenants of the corporation already existing), should be for a longer period than.ten years, and that all leases of public property should be made by public auction, and to the highest bidder, who should give adequate security, and that it was farther provided, in said act of 1857, that any officer of the city government, who should willfully violate or evade any of the provisions of the said charter, shall be deemed guilty of a misdemeanor. That on the 21st of October, 1857, Wood was mayor, and the other defendants aldermen and councilmen of said city, and officers of the city government; and that they, disregarding their duty, and with intent to violate and evade the provisions of said charter, willfully and unlawfully did violate and evade the said charter, by voting for and in passing a resolution, in due form of law, directing the comptroller to lease to the Eoman Catholic Orphan Asylum certain real estate belonging to the corporation, for a period longer than ten years—to wit, for so long a time as the same should be occupied for the use of the said asylum, without causing any such lease of the said property to be put up at public auction, to be let or leased to the highest bidder. It will be seen by this abstract of the indictment, that it is not averred that any lease has ever been in fact executed or delivered by the comptroller, nor that the asylum has acquired any right, title or interest in or to the said lands. If it shall appear that these averments are, or either of them is, a necessary ingredient in the offence charged in the second count, it follows that the omission vitiates the count.

The 41st section already referred to, declares that no lease thereafter given shall be for a longer period than ten years; and, also, that all leases shall be made' by public auction, and to the highest bidder, who will give adequate security. It is the violation of these provisions, with others, that is declared to be a misdemeanor. It is, then, a misdemeanor to to make a lease for a longer term than ten years; and it is also a like offence to make any lease, whether for less or more than ten years, except by public auction, and to the highest bidder,” &e.

If the second count alleged the making of a lease for a longer term than ten years, and also, that it was made without being put up at public auction, &c., it would contain the description of two distinct and independent violations of the 41st section of the charter, and consequently two misdemeanors; a count thus framed would be fatally defective. But it will be seen that it is not alleged in this count that any lease has been made; the averment is, that the defendants did violate and evade the provisions of said act by voting for, and passing a resolution in due form, directing the comptroller to lease to the asylum. By the statute, the offence is the giving of the lease; the offence in the indictment is the voting for a resolution authorizing the proper officer to make a lease.

Penal statutes are to be strictly construed; in other words, the offence with which the accused is charged must be brought plainly within the letter and spirit of the statute. Can it require argument to demonstrate that the passing by the common council, with the approval of the mayor, of a resolution that a lease be executed by the comptroller, is not the giving of a lease ? It is said by the counsel for the People, that all the defendants could do toward giving the lease, was to pass the resolution in question. That may be, but in order to convict them under the statute, the lease must be made. The making is the very essence of the offence, and if no lease has been made, then the statute has not been violated, and of. course no offence committed. The counsel for the People suggested, also, that this resolution, approved by the mayor, was a lease, within the principle decided by the Supreme Court in this district, in the case of Lowber. It was held in that case, that in case of a resolution by the common council to purchase certain real estate of Lowber, the comptroller, whose duty it was to complete the purchase, but which he refused to do, had no discretion whether he would obey the order of the common council. I have the opinion of the learned justice in this case of Lowber before me. In it he says: “ The heads of departments do 'not hold their places independent of the legislation of the common council, and when such legislation is not in violation of law, they have no right or power to refuse obedience to such legislation, because they may deem it unwise or improvident. On the contrary, they are only in the legitimate discharge of their duties when they comply with the legislative directions of the common council, not passed in violation of lawI fully concur with the learned justice in these views. If sound, they dispose of the position assumed by the counsel for the People. The comptroller is, according to the opinion in the case of Lowber, required to obey those resolutions and ordinances of the common council which they have authority to pass. But he is not bound to obey those which they have not authority to pass. If, then, the defendants could not make a lease for more than ten years, and if the resolution required the comptroller to make a lease for a longer term, he was not bound to obey, nor could the court compel him to execute such a lease. If the comptroller had executed the lease in obedience to the resolution in question, I entertain no doubt, but he would have been liable to indictment for a misdemeanor, and that the offence of the defendants would thus have been perfected. How can this resolution be called a lease, vrhen it was not intended as such, but contemplated an instrument thereafter to be drawn which should be a lease. Again, by the city charter the common council and mayor could not make a lease; that power is expressly conferred on the comptroller, and the resolution conforms to the charter, and leaves the execution of the lease to the officer who alone could rightfully make it. Does this resolution partake in any respect of the form or nature of a lease? Does the resolution create a term in favor of the asylum ? Does not it give possession or the right of possession—does it contain any agreement to let or pay rent—or any condition on which the estate, if there was one, should terminate? Could the corporation maintain an action on this resolution for the rent? In short, could either the asylum on the one side, or the corporation on the other, maintain any action or proceeding on this resolution, as and being a lease of these premises in question. It seems to me not. And if not, then no lease for a term of more than ten years has been granted, and of course no offence committed.

If I am right in holding that the actual giving of a lease is necessary to render the defendants liable under the clause of section 41 above referred to, it is just as essential to render them liable under the clause constituting the other offence of making leases otherwise than by public auction.

I must hold, therefore, that the second count of this indictment is bad, for the reason that it does not allege or show that any offence has been committed by the defendants, or either of them, within the true intent and meaning of sections 40 and 41 of the act of 1857.

It only remains to inquire whether the first count charges an offence for which the defendants can be put upon their trial. This count is for a conspiracy. It alleges the passing of the act of 1857; that Wood was mayor, and the other defendants aldermen and councilmen of this city; that, disregarding their duty, they did willfully, maliciously and unlawfully conspire) combine, confederate and agree together to violate and evade the provisions of the said act, by certain means which were then and there in themselves criminal, viz.: by willfully, unlawfully and maliciously passing a resolution through the common council, and obtaining the sanction of the mayor thereto, directing the comptroller to execute a lease to the asylum of certain premises described in the said resolution; that the corporation owned the said premises; that those of the defendants who were aldermen willfully, unlawfully and maliciously did vote in favor of, and aid and assist in the passage of such resolution, and did obtain the approval of the board of aldermen to said resolution, and the same was duly certified by the clerk of said board; and the like charge against those of the defendants who were members of the board of councilmen; and that Wood, as mayor, did willfully, maliciously and unlawfully approve of said resolution.

A conspiracy is defined to be a combination of two or more persons to accomplish an illegal object, or a lawful object by illegal means.

The 2d Revised Statutes (874, § 8), provide that if two or more persons shall conspire to commit any offence, &c., they shall be deemed to be guilty of a misdemeanor. Section 10 provides that no agreement, except to commit arson or burglary, shall be deemed a conspiracy, unless some act under such agreement be done to effect the object thereof, by one or more of the parties to such agreement. Although by the statute an overt act must be averred in order to complete the offence, yet the gist of the offence is the corrupt agreement. The conspiracy charged or intended to be charged in this instrument, is to do an unlawful act. What is the unlawful object which the conspirators in this case are charged with conspiring to attain ? The indictment alleges that it was to violate and evade the provisions of the said act (meaning the amended charter of 1857), by certain means which were in themselves criminal, to wit: bypassing a resolution through the common council directing the comptroller to execute a lease, &c. The allegation that the statute was to be violated or evaded by means in themselves criminal, cannot help the count, as it is not shown what the means were, and so far as the facts alleged can aid us in determining the character of the means, they seem to be lawful. But what was the object sought to be obtained ? The public prosecutor argues that that object was to give a lease for more than ten years, and without putting it up at public auction, &c. But no such object or design is charged. It is said the statute was to be violated by the passage of the resolution. If I have succeeded in showing that the passage of the resolution did not violate the statute, then certainly it was not unlawful. The count does not show by averment that it was the object of the conspiracy to create an illegal term, or to give a lease otherwise than by public auction.

The only other ground on which this count can be sustained, is by treating the allegation that the defendants conspired to violate or evade the act, sufficient without any specifications of the particular section or clause of the act the conspirators designed and agreed to violate.

The English courts have upheld indictments for conspiracies quite as vague and indefinite as this,- as to the statement of the object of the conspiracy. In our own courts a more stringent and, as I think, a more just and sensible doctrine is insisted on, and the public prosecutor is required to state truly and specifically the precise object contemplated by the conspiracy. But as I can find no decision directly on the question, and as it is not entirely free from doubt, I shall hold the count sufficient in form in the respect alluded to.

As I have aimed to dispose of this case on the merits, rather than on mere technical rules of pleading, I will assume, therefore, for the purposes of the case, that conspiring for an unlaw-' ful purpose is properly charged in the indictment, and that that unlawful -purpose was the violation of the act of 1857, already cited. I have declared my opinion to be that the defendants, by voting for the resolution, were not liable for a misdemeanor, as the statute made the giving the lease, and not voting for the resolution ordering the lease, the violation which is denounced as a misdemeanor. The last clause of the 8th section of the act of 1857, expressly declares that no alderman or councilman shall be questioned in any other place for any speech or vote in either board.

We must give effect to this clause, as well as to the 40th and 41st sections of the same act. In the view which I take of these provisions, there is no conflict between them. The statute not only does not seek to hold the member of the common council responsible for his vote, but expressly exempts him from all accountability therefor, unless it is the result of official corruption. He is responsible when he shall have aided in doing an act forbidden by law, and that act, when done, declared to be a misdemeanor.

If I am.right in these views, it follows that, although the votes of the defendants may be proved to show an overt act by the conspirators, yet it is not on the principle that the votes thus permitted to be proved are illegal, but as lawful acts done in execution of the conspiracy. Giving, as I think we must do, full force and effect to the exemption from responsibility for voting’ their votes must be held lawful for all purposes. The public prosecutor cannot, therefore, rely on the defendants’ votes for the resolution in question as any evidence of the unlawful confederacy; that must be proved by other and independent evidence.

I am, therefore, of the opinion that the second count of this indictment is insufficient, for the reason that it sets forth no crime or offence.

Second, that the first count is valid in law, and that the defendants must be held to answer said count.

The motion to quash is therefore denied, so far as the first count is concerned.


author: Sutherland, J.

text:
    Supreme Court. New York General Term,
    December, 1858.

      Davies, Clerke and Sutherland, Justices.
    The People v. John D. Marks.
    The offence of burglary consists of breaking and entering with intent to steal or commit any felony, and the commission of the crime, of which the intent is charged, is not the only evidence by which such intent may be proved. It may be shown by some other fact or circumstance, or by some act or declara* tion of the prisoner.
    Where, in an indictment for burglary with intent to commit larceny, and for the commission of such larceny, the larceny itself is insufficiently charged, the prisoner may still be convicted of the burglary alone, if the evidence is sufficient to establish the intent charged.
    On the trial of an indictment for burglary, it is erroneous for the court to charge thp jury that the prosecution is not bound to prove the intent affirmatively^, (Ihough the intent need not be proved by direct or positive evidence^yet the prosecution must affirmatively show fácts or circumstances from which it may be inferred.
    An indictment for burglary, charging the breaking into a store in which goods are kept for use, sale and deposit, is not sustained by evidence of breaking into an inner room of a building, which was not a store, but a mere business office of the Board of Underwriters, in which were kept merely furniture and articles for their business use.
    This case came up on certiorari to the Court of General Sessions of the Peace in the city and county of New York, where the prisoner had been found guilty by the verdict of a jury.
    The facts in the case are sufficiently stated in the opinion of the court.

      J. Blunt (District Attorney), for the People.

      E. Blankman, for the defendant.
   By the Court,

Sutherland, J.

The prisoner, John D. Marks, was tried at a Court of General Sessions of the Peace, held in and for the city and county of New York, before the Hon. A. D. Bussell, City Judge, on an indictment which charged that on the 28th day of June, 1858, at the first ward in the city of ¡New York, the said Marks did feloniously and burglariously break into and enter the store of the Board of' Underwriters there situate, “the same being a building in which divers goods, merchandise and valuable things were then and there kept for use, sale and deposit, with intent, the goods, chattels and personal property of the said Board of Underwriters, in the said store then and there being, then and there feloniously and burglariously to steal, take and carry away.” And which indictment no doubt was intended further to charge, that the said Marks did then and there steal, take and carry away a carpet, six chairs, and various other articles, the value of which are severally stated in the indictment, the property of the Board of Underwriters, in the said store, kept as aforesaid, then and there being. But the words away, against, which ought to have followed the word carry, having been left out, no doubt by a clerical error in drawing the indictment, the indictment reads, “ then and there feloniously and burglariously did steal, take and carry, the form of the statute,” &c.

This clerical omission, upon which some stress was laid on the argument, I do not think of any importance in disposing of this case.

By the Bevised Statutes, burglary consists of three degrees. The crime for which the prisoner was indicted was burglary in the third degree, as defined by the statute.

By the statute, the breaking and entering “any shop, store, booth, tent, warehouse, or other building in which any goods, merchandise or valuable thing shall be kept for use, sale or deposit, with intent to steal therein, or to commit any felony,” is burglary in the third degree.

The offence is complete by the breaking and entering, with the intent to steal, &c. The actual larceny, although, when it can be proved, the most conclusive evidence that the intent of the breaking arid entering was to steal, need not, I presume, be charged in the indictment, and when charged the proof of it is not necessarily the only proof of the intent.

But there must be proof of some fact or circumstance, act or declaration of the prisoner, in addition to the proof of the mere breaking and entering, from which the jury can find the intent charged in the indictment.

In this case, the only evidence of the breaking and entering was the testimony of Mary Schmidt, who testified that she saw the prisoner at 6 P. M., come out of an office and lock the door, on first floor (rooms numbered 17, 19 and 21, in Mo. 49 Wall street), and that he tried the other door; asked if those gentlemen had gone; that he went down stairs and took a key and unlocked Mo. 16 (the office of the Board of Underwriters); that she then called John Davis, the colored boy; that when he, the prisoner, saw her he walked pretty smart, and Davis followed him; that she locked Mo. 16 that afternoon; did not see anything in the prisoner’s hand; that she saw the prisoner take the keys out of his pocket, and open the door of Mo. 16.

John Davis, the colored boy, testified: That he saw the prisoner in front of the door of Mo. 50 Wall street; that the witness was sweeping, and the prisoner came out by the door and walked very fast; that the witness followed him to Jauncy Court, and saw him throw two keys away; picked up the keys, and followed him to Broadway and Exchange place, where he was arrested.

James Sylvie, the officer, testified: That he saw the prisoner on the corner of Wall and William streets, on the second floor, in the hall; took him to the Station house; found on his person some pawn tickets and two coats, money, and several counterfeit notes; received the keys from Dorsey, to whom the boy Davis had handed them, and tried them in door of Mo. 16; they fitted well.

Gerard S. Stagg, business clerk to the Board of Underwriters, testified: That the rooms of the Board of Underwriters, 16 and 18, in 49 Wall street, contained furniture, carpets, tables, chairs and charts, on the 28th day of June, the day on which the prisoner was charged to have committed the burglary.

This is all the evidence I find in the case; and on this evidence, under the charge of the court, the jury found the prisoner guilty.

I do not find any evidence that the prisoner ever entered the door of the room No. 16, or that any of the property found on him had been stolen, and no evidence that anything had been taken, or stolen, or missed from room No. 16.

The Judge, in charging the jury, after stating the offence for which the prisoner was indicted, as defined by the statute, charged as follows:

That before they could convict the defendant as charged, they must be satisfied that a burglary had been committed, and that the defendant entered the premises with the intent to steal or to commit a felony. That the intent must be gathered from all the circumstances of the case, and that the prosecution was not hound to prove it affirmatively. That the evidence showed that a burglary had been committed, and if they, the jury, her lieved that the defendant entered the premises with the intent to steal or commit a felony, then they must convict; otherwise, acquit. That if they had a well founded doubt, as to the guilt of the defendant, they must give him the benefit and acquit.

To this charge the prisoner’s counsel excepted.

The charge would certainly appear to be just and fair in the main, and yet, no doubt from inadvertence, I think it contains grave errors, which may have had a very serious effect upon the jury against the prisoner. It was certainly an error to tell the jury, that the prosecution was not bound to prove the > intent affirmatively, and to charge then positively that the evidence showed that a burglary had been committed. These propositions, however, qualified by other parts of the charge, preceding or following, were wrong, and calculated to mislead the jury, and to prejudice the prisoner.

The intent, it is true, was to be gathered from the circumstances of the case, but the prosecution was bound to prove it affirmatively; that is, to prove facts and circumstances affirmatively, from which the jury could gather the intent, and the intent charged in the indictment. If the learned judge had told the jury that the prosecution were not bound to prove the intent positively, the prisoner would have had less cause to complain.

So the judge was certainly unfortunate in the use of words when he told the jury that the evidence showed that a burglary had been committed. The evidence may have shown that there had been a breaking into, but it did not show a burglary, unless it showed the breaking into with intent to steal, &c.

The intent is a part of the definition of burglary. The very question for the jury was, whether a burglary had been committed. I think the exception to the charge was well taken, and that upon that ground alone the prisoner should have a new trial.

I am inclined to think, also, that there was a fatal variance between the offence (if any) proved, and the offence charged in the indictment.

The indictment charged the prisoner with breaking into and entering a store, in which goods were kept for use, sale and deposit. The proof, if it showed a breaking and entering,. showed a breaking and entering into an inner room of a building in Wall street, which room was not a store in which things were kept for use, sale and deposit, but a mere business office of the Board of Underwriters, in which were kept merely furniture and articles for their business use.

It will hardly do to say this is mere matter of form, and should be disregarded. It appears to me that it is matter of local description and of statutory definition of the offence, and that the variance was material and could not be disregarded.

Upon the whole, I am of the opinion that there should be a new trial.

Conviction reversed and new trial ordered.


text:
    New York Oyer and Terminer.
    January, 1859.
    Before Mullin, one of the Justices of the Supreme Court.
    The People v. Joseph R. Taylor.
    The non-payment, by the collector of assessments of the city of New York, to ■ the chamberlain of said city, within the time required by the ordinances of the common council, of the money collected by him on tax-warrants issued by the city authorities, is not a “ fraud upon the city ” within the meaning of section 40 of the amended charter of said city, passed April 14, 1851, by which the committing of a fraud upon the city is declared to be a misdemeanor.
    This was a motion to quash, an indictment, on the ground fully set forth in the opinion of the court.

      John W. Edmonds, for the defendant, made the following points:
    x Point I. This being an indictment for a statutory offence, it should contain specific averments of every fact necessary to bring the alleged offence within the statute.
    II. The statute under which this indictment was found was the amended charter of 1857, and it created a misdemeanor for four causes:
    1. Evading or violating the charter; or,
    2. Committing any fraud on the city; or,
    8. Converting any of the public property to private use; or,
    4. Permitting such conversion by others.
    This indictment was for the second ground, viz.: fraud upon the city. All the allegation was, that defendant received $15,500 of his deputy collector, and did not pay it over. Was this necessarily “ a fraud on the city?”
    The money might jie retained by virtue of an injunction, or for defendant’s fees, &c., &e. The facts stated not being of necessity a fraud, the indictment is defective in not averring in what the fraud consisted.
    III. The facts stated, if proved, did not show any fraud upon the city, for the money alleged to have been paid to defendant did not belong to the city, and therefore the city could not be defrauded. It belonged to the owners of the property-taken for the park, and if any one was defrauded it was they and not the city.
    IY. There could be no fraud without falsehood, and there was no allegation here of either expressio falsi ox suppressio veri. The non-payment of the money did not of itself constitute fraud.
    Y. It was not averred that the money was paid to defendant as a public officer, nor that it was his duty as such to receive or pay it.
    YI. There was no statute requiring defendant to pay to the chamberlain. It was prescribed by ordinance only, and to sustain this indictment would make every violation of an ordinance an indictable offence.
    YII. The ordinance required the collector, on each Tuesday, to render an account to the comptroller of his receipts, and “ thereupon” to pay to the chamberlain; therefore, if this indictment should lie, it would be an indictable offence tobe one day behind.
    Yin. The averment that defendant was an officer of the city, was defective.
    IX. It was not averred that any legal assessment had been imposed, which defendant had a.right to collect. Non constat, the money would have been illegally collected and the defendant personally liable if he had paid it over.
    X. The indictment averred that it was defendant’s duty to pay over the money, &c. This was a conclusion of law arising from facts, and the defect was in not setting forth the facts whence that conclusion flows.
    . XI. An act done in the exercise of a supposed legal right, could not be a felony, though contrary to a statute. And it was not enough to allege matter which makes it probable that an offence has been committed. The act of retaining the money by the defendant was not necessarily illegal. It was just as probable that he had a right to retain it as that he had not.

      XU. In an indictment for an offence created by statute, the indictment must show what offence was committed by positive averment. It was not enough that it appear by inference.
    XIII. Therefore the indictment should be quashed, and courts could quash an indictment, 1. If from facts stated it appeared that no indictable offence had been committed. 2, When the offence imputed was not of a public nature, and a material averment was wanting. 8. And where there was a gross deficiency in the formal requisites of an indictment.

      John McKeon and James R. Whiting, for the People.
   Mullin, J.

The defendant is indicted by the grand jury, under the 40th section of the amended charter of the city of New York, passed April 14, 1857.

That section is as follows: “ Any officer ofthe city government, or person employed in its service, who shall willfully violate or evade any of the provisions of this charter, or commit any fraud upon the city, or convert any of the public pro" perty to his own use, or knowingly permit any other person to so convert it, shall be deemed guilty of a misdemeanor,” &c., &c. The particular clause of the section which the defendant is charged with violating, is that which declares it a misdemeanor to “ commit any fraud on the city." The fraud alleged is the non-payment by the defendant, to the chamberlain of the city, of the taxes collected by him on warrants issued by the city authorities to the defendant as collector of assessments in said city, within the time required by the ordinances of the common council.

There are numerous objections made to the indictment by the defendant’s counsel, several of which I think are well taken.

I propose to examine but a single one, which is, that the indictment does not allege or show that any fraud upon the city has been committed. This objection goes to the merits, and, if well taken, no amendment can cure it, and thus the delay and trouble incident to an attempt to remodel the present bill, to obviate mere formal objections, will be avoided.

The Legislature has not given any definition of the term 11 fraud," used in this statute, and we are left, therefore, to ascertain its meaning by the well established definition of the term by the courts and by approved writers on the law, at the time of the passage of the act in question.

By a distinguished writer on the civil law, fraud was defined to be “ any conniving, deception or artifice, used to circumvent, cheat, or deceive another.” This definition is approved by Judge Story in his Equity Jurisprudence (vol 1", §§ 186, 187), as being sufficiently descriptive of positive actual fraud, when there is an intention to commit a cheat or deceit upon another, to his injury. But he says it does not embrace that large class of frauds recognized in equity as implied or constructive frauds Mr. Jeremy, in his Equity Jurisprudence (B. 3, p. 2, 358)" defines fraud to be “ a device, by means of which one party has taken an unconscientious advantage of the other.”

Judge Willard, in his Equity Jurisprudence (p. 147), says “ Fraud has been defined to be any kind of artifice by which another is deceived.” Hence, he says, All surprise, trick, cunning, dissembling, and other unfair way that is used to cheat any one, is to be considered as fraud.”

. Can it be said that the acts or omissions of the defendant charged in this indictment, constitute fraud within either of the definitions of that term above given ? It is impossible to separate deceit or artifice from fraud; it is of the very essence of the fraud. That ingredient is totally wanting in this case. It was doubtless competent for the Legislature to declare that the omission by a public officer to pay over money collected by him in his official capacity, was a fraud upon the person or corporation entitled to receive it. But until fraud is thus defined, no indictment for such an offence as a fraud can be maintained.

I have been referred to the definition of fraud as laid down in Bacon’s Abridgement, title Fraud. It is there defined thus: “ Fraud is the act by which one person, unlawfully, designedly and knowingly, appropriates to Ms own use the property of another without a criminal intent.” If this is the true meaning of the word, it embraces the acts or omissions charged on the defendant in this indictment. With all deference, I think this definition omits all the essential ingredients of fraud, and embraces a multitude of acts wMch have never been supposed to be fraudulent.

Within the definition thus laid down, comes every forcible and known unlawful seizure and conversion of property, embracing all cases of trespass, case, trover and replevin, in which the guilty party was acting illegally and with knowledge that the property taken was that of another. If A goes at midday into his neighbor’s field, and forcibly seizes and carries off such neighbor’s horse, knowing that the latter was the lawful owner, A may, under the defimtion, be indicted for the fraud wherever fraud is indictable. The litigation of the country would be transferred from the civil to the criminal courts wherever this definition of fraud was adopted. I will not say that in no case will acts such as are embraced in this definition, constitute fraud; but I do say that such acts, standing alone, do not come within the meaning of the term fraud, as understood by the courts of this country or of England.

As every violation or evasion of the charter is declared to be a misdemeanor, if the duty of paying over is imposed upon the defendant by the charter, there is no necessity for resorting to any forced construction of terms to make the accused responsible. If the duty is not imposed by the charter, then the omission to perform it is not a criminal offence, and the city must resort to the same civil remedy that every individual in the State is compelled to adopt when his servant or agent embezzles Ms property, or neglects or refuses to pay over moneys which he may have received for Ms principal.

For these reasons I am constrained to grant the motion to quash this indictment. If I entertamed any doubt as to its sufficiency, I would leave the defendant to his motion in arrest of judgment; but I cannot discover any principle upon which the indictment can be sustained, without a total abandonment of those rules of criminal pleading, the observance of which is essential to the protection of the citizen, whether guilty or innocent of the crime of which he stands accused.

It is said that any pleading is sufficient that informs the accused of the offence with which he is charged. This is unquestionably the very end and object of all pleading, and if this general rule is rightly understood and applied it is unobjectionable. The use which is sought to be made of the rule at this day, in criminal as well as civil cases, is to justify the abandonment of all form and all certainty in pleading, and, instead of inquiring whether an offence or cause of action is contained in the indictment in the one case, or complaint in the other, the inquiry demanded by the rule, as now understood, is, “ does it inform the party of the charge or claim made against him.” The rule, as it should be applied, requires that the offence or cause of action be described with such precision and accuracy as to distinguish it from all other offences and causes of action, and that by such description the other party may know with what he is charged. The test, then, is not how loose and imperfect a pleading may be, but how clearly and distinctly the case intended to be made by it is stated. The common law required great accuracy in both civil and criminal pleading, not with a view of oppressing the parties, but of protecting them from the evils resulting from loose'and inartificial pleadings ; to require the pleader to so describe the offence in the indictment that the accused might be shielded from a second prosecution for the same offence. This wholesome and necessary rule must be enforced, or all system and symmetry in pleading will be lost, and the accused will be no longer safe from repeated annoyances on the same accusation.

The motion to quash the indictment is granted.


text:
    United States. Circuit Court. Southern District of New York.
    Before Judge Hall.

    January, 1859.
    The United States v. John Mulvaney.
    An indictment charging: the opening of a letter, which had heen in the custody of a mail carrier, before it hadheen delivered to the person to whom it was directed, with a design to obstruct the correspondence of another, Ac., is not sustained by proof that the defendant opened a letter which had been left with him at :his- 'residence by the mail carrier, and which was 'directed to another person to the care of the defendant, at the number of-the house occupied by the defendant, it appearing that the defendant not only used no artifice to obtain possession of the letter, but that he in fact objected to receiving it.

      Held, also,, that there being no evidence of. the corpus delicti, except the confessions of the defendant,-the defendant ought to be acquitted on that ground.
    .Form of. an indictment in the United States Court for opening a letter, which had been in tbe.custody of a mail carrier, before it was delivered to the person to whom it was directed. ...
    The defendant was brought to. trial upon an indictment which was in the' words "and figures following:
    “ Southern District of New Doric, in the Second Circuit. .

    “Ata stated term of the Circuit Court of the United. States .of America, for the- southern district of New York in the second circuit, begun and. held at the city of New York, within and for the district-and circuit aforesaid, on thé last Monday of February, in the year of our Lord one thousand eight . hundred and fifty-nine, and continued by adjournment to and including the third day of March in the same year.
    “ Southern District, of New Doric, ss:

    “ The jurors of the United States of America, within and for the district and circuit aforesaid, on their oath present: That John Mülvaney, late of the city and county of New York, in the district and circuit aforesaid, laborer, heretofore, to wit: on the seventeenth day of January, in the year of our Lord, one thousand eight hundred and fifty-nine, at the city of New York, in the southern district aforesaid, and within the jurisdiction of this court, did open a letter which had been in custody of a mail carrier, before it had been delivered to the person to whom it was directed, with a design to obstruct the correspondence, to pry into another’s business and secrets, against the peace of the United States and their dignity, and against the form of the statute of the said United States, in such case made and provided.

      Second Count.

    “ And the jurors aforesaid, on their oath aforesaid, do further present: That John Mulvaney, late of the city-and county of Mew York, in the district and circuit aforesaid, laborer, heretofore, to wit: on the seventeenth day of January, in the year eighteen hundred and fifty-nine, at Mew York, in the district and circuit aforesaid, and within the jurisdiction of this court, did destroy a certain letter, which had been in custody of a mail carrier, before it had been delivered to the person to whom it was directed, with a design to obstruct the correspondence, to pry into another’s business and secrets, against the peace of the United States and their dignity, and against the form of the statute of the said United States, in such case maria and provided.
    “THEODORE SEDGWICK, U. S. District Attorney.”

    The defendant pleaded not guilty.
    The government proved, that on or about the seventeenth day of January, 1859, a city mail carrier left with defendant, at his place of business (82 Catharine street), a letter directed to “ John Stewart, care of John Mulvaney, 82 Catharine street, Mew York citythat defendant at first objected to receiving it, but took it, and said he would see that it was delivered to the person to whom it was directed. Stewart testified that the letter was never delivered to him. Several witnesses testified that defendant, upon being asked whether he had received the letter, at first denied it, but afterwards admitted that he had received the letter, opened and read it, and then burnt it.

      Henry L. Glintcn, for the defendant,
    contended that, inasmuch as the letter was delivered by the mail carrier, at the place to which it was directed, defendant having resorted to no fraud or artifice to get possession of it, the letter had passed out of the jurisdiction of the United States. Mr. C. also contended that there must be proof of the corpus delicti aside from the confessions of defendant; and as there was no testimony showing either the opening or destruction of the letter, except defendant’s admissions, on this ground the jury should acquit. On this point, counsel cited People v. Hennessey (15 Wend., 147.)
    After hearing Mr. Dwight, Assistant U. S. District Attorney, the court sustained both points taken by the defendant’s counsel, and directed an acquittal.
   Verdict, not guilty.


text:
    Supreme Court. At Chambers. New York,
    January, 1859.
    Before Sutherland, Justice.
    The People v. Henry Rhoner.
    A warrant of commitment is irregular in not stating or showing on its face that the justice issuing it had determined that there was probable cause to believe the prisoner guilty of the offence with which he stood charged.
    Bank notes wholly printed or engraved, are the subjects of forgery, and counterfeits of them, wholly printed or engraved, made with the intent to defraud, are forgeries within the 33d section of 2 R. S., 613.
    The prisoner was charged, under section 33 of 2 R. S., 613, with forging notes of the “Austrian National Bank,” and under section 36 of 2 R. S., 614, with having such forged notes in his possession, with intent to utter them. It appeared that the notes of the “Austrian National Bank,” including the signar ture of the “ cashier director,” were wholly printed or struck from an engraved plate, and the counterfeits found in the possession of the prisoner were evidently made in a similar manner: Held, that such bank notes were covered by the word “instrument,” in section 33 referred to, though no part of them was written, and that the offence of .counterfeiting them was forgery under the statute.
    This case came before Mr. Justice Sutherland, on habeas corpus, at chambers.

      At the same time that the writ of habeas corpus was issued to the warden of the city prison to bring up the body of the prisoner, Henry Bhoner, writs of certiorari were issued to James H. Welsh, the police justice who committed the prisoner, and to Joseph Blunt, Esq., the district attorney of the city and county of New York, commanding them severally to6 certify the day and the cause of the imprisonment of Bhoner.
    Justice Welsh returned to the certiorari directed to him, that he took a certain complaint, under oath, against Bhoner, and certain other testimony, which he reduced to writing; that Bhoner waived a further examination of the case, and that he thereupon made his warrant of commitment to the warden of the city prison, committing him under the complaint, and that, as required by law, he had returned to the court of General Sessions all the testimony taken before him.
    To the certiorari directed to him, Mr. Blunt, the district attorney, returned the complaint and depositions taken before Justice Welsh, and returned by him to the Court of Sessions.
    To the writ of habeas corpus, the warden of the city prison made return by producing, the body of the prisoner, and annexing to the writ, and certifying as the cause, of detention, a copy of the warrant of commitment of Justice Welsh, from which it appeared that the prisoner was charged before Justice Welsh, on the oath of Joseph Keefe, with having, on the 19th day of Hovember, 1858, at the city of New York, in his possession, twenty-two bank notes, purporting to be each one hundred guilder notes, of the “ Austrian Hational Bank,” with the knowledge that the same, were forged and counterfeited notes on said bank, with intent to defraud.
    The prisoner answered the return to the habeas corpus, by alleging, substantially, that the, only testimony before Justice Welsh, upon which he issued the warrant of commitment, was that contained in the complaint and depositions so returned by the district attorney to the certiorari issued to him; and that such complaint and depositions do not show that the prisoner had committed or been guilty of any criminal offence, to authorize or justify the issuing of the warrant of commitment.

      Henry L. Clinton and F. S. Stallknecht, for the prisoner.

      J. Larocque, J. R. Whiting and Joseph Blunt (District Attorney), for the People.
   Sutherland, J.

Without passing upon the question of the regularity of the writs of certiorari and habeas corpus issuing at the same time, or of the writs of certiorari issuing to the district attorney and to Justice Welsh, in this case, inasmuch as the complaint and depositions upon which the prisoner was committed, have been- actually returned by the district attorney, and are before me, and the prisoner asks to make them a part of his answer to the return to the habeas corpus, I shall consider the complaint and testimony before the committing magistrate properly before me, and look into them to see whether they contain sufficient to authorize the commitment and imprisonment of the prisoner, provided I am authorized in this case' to1 go behind the commitment and look into the depositiohs before Justice Welsh.

Without examining or deciding the question so elaborately argued before me'in this matter, whether, if the commitment were regular on-its-face, I could go behind it and look into the depositions and review the decision or determination of Justice Welsh upon the testimony, I am of the opinion that the commitment is not regular; and that I am authorized, and that it is my duty in this case, to look into the depositions before the justice to see whether the prisoner’s commitment was authorized and his detention is legal.

Without adverting to any other particular, I think the commitment is irregular in not stating or showing on its face that the justice had determined, that there was probable cause to believe the prisoner guilty of the offence with which he stood charged. I think the commitment should show on its face this determination or judgment of the committing magistrate, and that in the absence of it I ought to look into the testimony before him to see whether in fact there was or is probable cause to believe the prisoner guilty of the criminal offence with which he was charged, or of any criminal offence.

I have accordingly looked into the depositions before the justice, upon which the prisoner was committed.

I find that the prisoner and two others, John Kaegi and John Sturzenegger, were arrested and brought before the justice, charged with passing and having in their possession, with intent to pass, a large number" of forged bank notes of the Bank of Austria, and without referring to the particulars or details of the depositions, it is sufficient to say, if the instruments or bank notes so alleged to be forged, were forged, or could be the subjects of forgery, within the statutory definitions of that crime contained in the Revised Statutes, that then these depositions are abundantly sufficient to show that there is probable cause to believe that the three prisoners were guilty not only of passing certain of these forged bank notes, knowing them to be forged, and of having others of them in their possession with intention to pass them, but of forging them.

Several of the alleged forged notes, found in the trunk of Bohner and on the persons of the other two prisoners, are annexed to depositions. Of those found in the trunk of Bohner, some of them appear not to be complete or entirely filled up, and every part of such as appear to be complete or entirely filled up, including the signature of the cashier or “ cashier director,” is evidently a print or impression from an engraved plate.

Mot only are the vignette, the scroll at the top, the heads at the ends, and the Austrian coat of arms at the bottom of the bill, impressions from an engraved plate or plates, but the entire instrument, including the signature, is evidently an engraving or an impression from plate or plates.

The alleged forged notes are in the German language, and the following is a translation of one of them, made and handed to me by one of the counsel for the prisoner, on the hearing of this matter:

“ 100 Hundred Guilders. 100 ”
“The privileged Austrian National Bank pays to the Bearer against this Draft, Hundred Guilders, Silver Currency, according to the conventional value.
“ For the privileged Austrian National Bank,
“H. WEITTENHILLER,
“ Cashier Director.
“ Vienna, the 1 January, 1847.”

It appears from the depositions taken before the justice in this matter, that there is and was a bank or corporation called the Austrian National Bank, incorporated and authorized by the laws of the empire of Austria, to issue circulating notes; and that the alleged forged bank notes, so found in the possession of the prisoner, were false, forged and counterfeit, and made in the form and similitude of the genuine bank notes or bills issued by the said “Austrian National Bank.”

It does not appear from the depositions before the justice whether the signature to the genuine bank notes of the said bank is or is not engraved; but the counsel for the prisoner, on the hearing of this matter before me, offered to prove that every part of the genuine bank notes or issues of the said bank, including the signature, was and is a print or impression from an engraved plate; and in disposing of the only ground or point on which the counsel for the prisoner insist that the depositions do not show that the prisoner has been guilty of any crime, and move for his discharge. I shall assume that every part of the genuine, as well as of the alleged forged notes, including the signatures, is a print or impression from an engraved plate. Being so, the counsel for the prisoner insist that these alleged forged notes cannot be forgeries, or the genuine notes the subjects of forgery, because they are not writings; that at common law, as well as under the ¡Revised Statutes, writings, or written instruments only, are the subjects of forgery.

Having examined this question with some care, I have no hesitation in expressing the opinion that the counsel for the prisoner are clearly mistaken in their interpretation of the provisions of the Bevised Statutes in relation to forgery.

By section 33 (2 R. S., 673), every person who, with intent to injure or defraud, shall falsely make, alter, forge or counterfeit “ any instrument or writing, being or purporting to be the act of another, by which any pecuniary demand or obligation shall be, or shall purport to be, created, increased, discharged or diminished, or by which any rights or property whatever shall be or purport to be transferred, conveyed, discharged, diminished, or in any manner affected, the punishment of which is not hereinbefore prescribed, by which false making, forging, &c., any person may he affected, hound, or in any way injured in his person or property, upon conviction thereof shall be adjudged guilty of forgery in the third degree.”

The revisers, in their note to this section, after stating that the first section of the old statute (1 R. L., 404), contained an enumeration of a great number of instruments specifically described as the subjects of forgery, and that the same practice had prevailed in England of enumerating particular instruments, by enacting new statutes to reach new cases as they arose, until they amounted to 403, say that section 33 had been prepared, “ to avoid cavil, to reach every case of forgery that has ever been committed, or that ever can be committed, and to afford a definite and distinct rule.”

By section 36 (2 R. S., 674), “every person who shall have in his possession any forged, altered or counterfeit negotiable note, bill, draft, or other evidence of debt, issued, or purporting to have been issued, by any corporation or company duly authorized for that purpose by the laws of the United States, or of this State, or of any other State, government or country, the forgery of which is hereinbefore declared to be punishable, knowing the same to be forged, &c., with intention to utter the same as true or false, with intent to injure or defraud, &c., shall, uppn conviction, be subject to the punishment herein prescribed for forgery in the second degree.”

At common law and by statute, the gist of the crime of forgery is fraud. At common law, the crime of forgery was defined to be “the fraudulent making or alteration of a writing to the prejudice of another man’s rights.” (4 Blac. Com., 247.)

As the wants of civilization and commercial necessity established paper credit, and from time to time called into use new instruments in writing, statutes were from time to time passed, punishing, with severer penalties, the forging of such instruments.

Increased facilities and cheapness in the use of type, has, in our day, in a great measure, substituted printing for writing, and now printed instruments, and instruments partly printed and partly written, are quite as common as instruments wholly written.

The fraudulent intent with which an instrument is forged, or with which a forged instrument is possessed, being the very gist and essence of the crime, without which the counterfeiting might be nothing more than innocent amusement, it is very clear, without reference to statutory definitions, that the mating of a printed or engraved instrument calculated to deceive and defraud, with intent to deceive and defraud, might be just as much forgery as the mating of a written instrument with the same intent. The crime depends on the intent, and the intent is to be inferred from and depends on facts and circumstances.

If the prisoner Ehoner had caused to be printed or written an ordinary negotiable promissory note, and had with ordinary printing type impressed the name of “John Smith ” upon it as a signature, or in the place of a signature, it would have been difficult, if not absurd, to believe that he had forged the note, for individuals do not print their names to their notes, but write them; and therefore it would have been difficult to believe that he could have defrauded any one with the note, by mating them believe that it was the note of any one of the “ John Smiths ” in the city of New York.

A person may be guilty of forgery in writing his own name to an instrument, if done with intent to defraud by representing himself to be a different person of that name. (4 T. R., 28.)

By statute (2 B. S., 675, § 47) and by the common law, a person may be guilty of forgery by affixing the pretended signature of a fictitious person to an instrument.

It is not necessary in an indictment for forging aninstrument? to allege that the instrument or its pretended signature was or is in writing, or whether they are or were printed or written, provided the whole instrument is set out in the indictment (The People v. Rynders, 12 Wend., 431.)

The crime does not consist in making a false instrument, or false signature to an instrument, in the similitude of a real instrument or signature. Such similitude is only to be presumed to have been intended as the means of accomplishing the fraud, and is used as evidence of the intention to defraud.

Corporations are immaterial creatures of the law, and, strictly speaking, can have no signature, but they can execute instruments by their corporate seal, or by the signatures of any one or more of their officers, under their by-laws and regulations. I do not see why,a bank corporation, authorized to issue bank notes to circulate as money, unless prevented by the law which created it, should not, by its by-laws, provide that every part of its notes to be issued should be printed or engraved, including the signatures of the president and cashier; and certainly such entirely printed or engraved notes, if thus actually issued by the bank, would be good and valid in the hands of the holder against the bank, and I do not see why they would not be the subjects of forgery within section 33 of the Revised Statutes above mentioned.

3STo man has the right to use the name of another without his consent, either in print or in writing, as a signature to an effective instrument, or as a trade mark. Whether such unauthorized use of another’s name as a signature is forgery, depends upon the intent with which it is used.

If every part of the genuine notes of the “Austrian national Bank ” is printed, or an impression from an engraved plate, then the forger would most likely print or impress from an engraved plate every part of his counterfeits of such notes; but if the signatures to the genuine notes were written, I do not see why counterfeits of them with engraved signatures, if from their similitude calculated to deceive and defraud, and made, printed or impressed with the intention to deceive and defraud, would not be forgeries, and the making of them forgery,'within the statute.

It would certainly have been extraordinary if the revisers, with the declared intention of embracing within the definition of section 83 above referred to, every imaginable instrument which could be the subject of forgery, had omitted bank notes entirely printed or engraved as the genuine notes of the Austrian Bank are assumed to be, or forged notes wholly printed or engraved like those found on the person of the prisoner. I think they are not omitted; tl at so far as it relates to the nature and character of the instrument as the subject of forgery, they are within sections 33 and 36 of the article of the Revised Statutes concerning forgery, above referred to; and as it would appear, that among the impressions found in the trunk of the prisoner, some were not complete or entirely filled up, perhaps such imperfect impressions are within sub. 3 of section 30 of the same article.

I doubt whether the prisoner’s counsel would ever have raised the question which has been raised in this matter, had it not been for section 45 of the same article, defining the words “writing” and “written instrument” as used in the article. But I think the words “ instrument ” and “ writing ” are not used in section 33 as synonyms; and that section 45 intends to define the words “ writing ” and “ written instrument,” and not the word “ instrument,” as used in the article alone and unconnected with the word “ written.”

The words of section 33 are: “ Any instrument or writing, being or purporting to be,” &c.

I think the word “instrument" includes not only “ written instruments,” and “ writings,” as defined by section 45, but also engraved or printed instruments, being or purporting to be the act of another; indeed, all and every kind of instrument by the forging of which any person “ may be affected, bound or in any way injured in his person or property.”

I do not see why an engraved or printed instrument, or an engraved or printed name, affixed to an instrument by a person, is not his act, and may not purport to be the act of another.

If a person affixes his name to an instrument, with the purpose of making it effective as a signature, I do not see why it is not his instrument, and effective as against him, whether he so affixes his name with type, an engraved plate, a style, or pen.

I think the prisoner’s case is clearly within the statute, and that the writ of habeas carpus must be discharged, and he be remitted back to the city prison.