source: Caselaw Access Project

author: By the Court, Wright, J.

license: Public Domain

text:
    Supreme Court. Albany General Term,
    September, 1853.

      Harris, Watson and Wright, Justices.
    John Skiff pl’ff in error vs. The People def’ts in error.
    In an indictment for obtaining property by false pretences, it is sufficient to allege that the property was delivered to and obtained by the defendant by means of the false pretences particularly stated and negatived, without setting forth whether the property was so obtained by a sale or bailment or otherwise: and on the trial, under such an indictment, it is competent to prove in what manner the property was obtained, whether by sale, or bail ment, or in any other way.
    Where, in such a case, the indictment charged the pretence of owning two pieces of land,, in the town of Easton in the county of Washington, designating them as the “ Home farm,” and the “ Van Schaack farm,” the description was held to be sufficiently definite.
    Where the property Tras obtained on credit, and the person parting with the property was to receive a note payable at a bank, on which he could get the money, it was held to be competent for the public prosecutor to prove that the note was not paid, though -the fact that the note was not paid, was not alleged in the indictment.
    It is not necessary to negative all the pretences in an indictment for such an offence, nor to prove all that are negatived to be false.
    Whether the prosecutor used ordinary prudence and diligence, in inquiring into the truth of the pretences, and whether the pretences were sufficient to deceive, are questions of fact for the jury.
    Where it appeared that the false pretences were made, and the property obtained by them was delivered in the county of Washington, that was held to be the proper county for the trial of the offence, though it appeared that by agreement of the parties the note given for the property was not made and delivered till a subsequent time and in a different county.
    Error to the Washington county Sessions. The indictment alleged that in September, 1850, at the town of Easton, in the county of Washington, Skiff, with the intent to cheat and defraud one Samuel Hale, did falsely pretend and represent to Hale that he was the owner and possessor of two pieces of land in Easton, (afterwards designated as the Home farm and the Van Schaack farm,) 2000 bushels of grain, 160 head of cattle, and other property; that the land and personal property was unincumbered, and that he was able to pay his debts, and had always paid his debts when due; that Skiff did then and there show to Hale certain real and personal property, viz: 2000 bushels of grain, eighty head of cattle, and two pieces of land, and falsely pretended and represented to Hale, that he owned and possessed such real and personal property thus shown; that the real and personal property so shown was unincumbered, and that he did not owe for the Home farm or place, and that the Van Schaack farm was about paid for, and that his business of buying and selling cattle was profitable, and he was making money out of it; that Hale believing the false pretences and representations made as aforesaid by Skiff, and being deceived thereby, was induced by reason of them, to deliver, and did then and there deliver to Skiff, thirty-nine head of cattle, of the value of $600, the property of Hale, and Skiff designedly received and obtained the cattle by means of the false pretences and representations as aforesaid, and with the intent designedly to cheat and defraud Hale of the cattle. The indictment then proceeds to negative the pretences, averring knowledge by Skiff of the falsity of such pretences and representations, and concludes as follows: “And the jurors aforesaid do say that the said John Skiff, by means of the false pretences aforesaid, at the town and county aforesaid, did feloniously, unlawfully, falsely, knowingly and designedly receive and obtain from Hale, of the proper moneys, valuable things, goods, chattels, personal property and effects of the said Hale, with intent feloniously to cheat and defraud the said Hale of the same.”
    To this indictment Skiff interposed the plea of not guilty, and at a Court of Sessions held in July, 1852, the cause came on for trial.

      Samuel Hale was called and sworn as a witness, on behalf of the people. . He testified that in September, 1850, he owned thirty-nine head of cattle, and drove them to Easton Corners, when he met Skiff, whom he had known previously. He told Skiff that he had thirty-nine head of cattle with him; when Skiff informed him that he wanted to buy some cattle.
    Here Skiff’s counsel objected to the showing of any bargain or sale of the cattle, on the grounds, 1st, That no bargain and sale were alleged in the indictment. 2d, That the property and its location were insufficiently described in the indictment to admit of any proof thereof. The objection was overruled by the court and the defendant excepted.
    The witness then testified, in substance, that at Skiff’s solicitation, he got into his carriage and rode with him. Skiff spoke to the witness of a place he had bought of Van Schaack two or three years before, and the improvements he was and had been making; he showed the new fences he had made and told the witness the manner in which he had cultivated the land, and about his crops. He remarked, “ whát a fine chance the grass would give the young cattle you are driving, and I have a great deal such and better on the home farm.” Skiff pointed in the direction of the cattle on the Van Schaack farm and in answer to the inquiry of the witness replied that he had over 100 head. As the witness got into the wagon to return he praised Skiff’s improvements, and said he must be doing well. Skiff replied that he was doing pretty well. Witness asked Skiff how long he had had the farin'? H'e told. Witness then said, you have got it prettymuch paid for. He replied, yes. Skiff showed witness the grain. He said that he had 2000 bushels of oats and over, and did not owe anything for them. After tea, and the cattle had been put up, Skiff was in the field looking at them. Witness requested him to look over the cattle and make him an offer for them. He looked them over, and asked witness to set a price that he would take for them. Witness set his price and Skiff told him that he could not take them at that price. They soon agreed upon a price. At the price agreed upon the cattle came to $600. Before they agreed upon the price, Skiff said that he had not the money and wished to give the witness what he called a good bank note. He said the witness could get the money on the note if he wanted to use it. Witness told him that he supposed he could; he presumed they could deal as he had shown up pretty well. Skiff said his circumstances were as he had stated; he always paid his notes as they became due; that he was pretty much out of debt; that the home farm was unincumbered, and the Van Schaack farm was nearly paid for; that he was out of debt except a balance on the Van Schaack farm. Skiff did not say how much was due on the Van Schaack farm. He did not give a note at the time the cattle were weighed; the next day Hale went with the defendant to Troy; they went into Harrington’s office in Troy, when Skiff made a note for $600, payable to Hale’s order; Hale said it was not as he expected, it should have been to some one else’s order; Hale took the note.
    The District Attorney then asked the witness if the note bad been paid? The defendant’s counsel objected that it was not alleged in the indictment that the note was not paid. The court overruled the objection, and the defendant’s counsel excepted.
    The witness further testified that the note was dated 20th September, 1850, payable three months from date; it was not paid; it was payable at a bank in Troy; witness got it discounted at Whitehall, and when it became due paid it; two weeks after the giving of the note had a conversation with Skiff; witness had then heard that he had failed; he asked ¡him if he had made arrangements to pay the note when it became due; he said no, he did not expect to pay a shilling of it; witness asked him why he had deceived him in such a way? he said he had been carrying a heavy load for several years and he had to throw it off on to other people’s shoulders; he said his property was all mortgaged, he owed a great deal more than he could pay; the witness says that the representations which he made of his circumstances, indiv-ud him to let him have the cattle; he should not have let him have the cattle except for these representations; witness inquired of no person whether Skiff’s lands were unincumbered; he made no searches to see if he owned the lands, nor any searches for chattel mortgages; knew Skiff and had sold him cattle at other times, and up to the time of making the bargain had never heard his circumstances spoken against.
    It was then proved that after Skiff’s failure, which must have been soon after the cattle trade with Hale, he was examined in relation to his debts and assets. He stated his debts to amount to §26,215, and his assets §13,365; also that for two years he had known that he was not able to pay his debts. Skiff further stated that for a portion of the land he had nothing but a verbal contract; there were 92 acres of the whole, 7 acres of which he bought at §40 per acre, and had a deed for it, for the balance he had only a parol agreement with Van Schaaclc. He had paid Van Schaack §200 or §300, and had made §400 or §500 worth of improvements on the place. The cost price of place was §26,000.
    It was further proved that about the time of his failure, Skiff showed to a witness notes to the amount of §2'250, on which he had been an endorser, and said he had all that money to pay; that this brought him to where he was now; that he had known for five years that he could not pay his debts, with that load on his shoulders; that he had tried to get released from the notes. He was asked why he did not give up before; he replied because he hated to make a muss.
    This was the substance of the testimony on the part of the people, at the close of which, the counsel for the defendant moved to quash the indictment on the grounds: 1st. That the indictment does not allege a sale from Hale to Skiff, or any other bargain, or any other means by which the property was transferred from one to the other: 2d. It does not allege that Hale parted with his property at all: 3d. It does not allege that he did so in whole or in part, in consequence of these representations: 4th. It does not allege any sale from Hale to Skiff on credit: 5th. It does not allege that Skiff has not paid for the property: 6th. It does not allege that he has refused to pay: 7th. It does not allege that any pay day has arrived: 8th. That it does not falsify all the pretences, nor does it properly allege the falsity of those attempted to be falsified: 9th. The defendant’s counsel renewed the objections already specified in objecting to the evidence under the indictment. The court refused to quash the indictment on either or all of said grounds, and defendant’s counsel excepted to such refusal.
    The defendant’s counsel then moved for the discharge of the defendant upon the evidence on the following grounds: 1st. Because by the evidence it appeared that Hale parted with his property under the understanding on his part, that he was to receive a good endorsed note, and not on the faith of the representations made by Skiff. 2d. That Hale had not shown ordinary diligence on his part to ascertain defendant’s circumstances, although it was proven that he had abundant means within his power to ascertain the same. 3d. That the Court of Sessions had no jurisdiction to try the cause, as the property in the cattle remained in Hale, until the note for the purchase money was received by him of the defendant in the city of Troy. And that even the possession of the property was not changed, the cattle remaining in the same lot, and that the defendant could only be tried in the county of Rensselaer, where the offence if any, had been committed. The court, as to the several grounds of the motion for the discharge of the defendant upon the evidence, held, that the question raised involved matters of fact for the consideration of the jury, under the charge of the court, and that the defendant’s motion to be discharged was denied, to which decision and refusal the defendant’s counsel excepted.
    The jury found the defendant guilty, and the court impo'sed on him a fine of $250, and to stand committed until the same be paid-

      C. R. Ingalls, for plaintiff in error.

      J. Potter, (District Attorney,) for defendants in error.
   By the Court, Wright, J.

The first objection is, to the sufficiency of the indictment: the second to the proof sustaining it. Under these two general objections, we are to consider the case.

1. As to the indictment. It alleges that the defendant, with the intent to cheat and defraud one Samuel Hale, made certain false pretences, which pretences are set forth with particularity in the pleading; that Hale, believing such false pretences and representations, was induced by reason of them to deliver, and did then and there deliver to the defendant, thirty-nine head of cattle, of the value of $600, of the property of Hale; and the defendant did designedly receive and obtain the cattle by means of the false pretences, and with intent to cheat and defraud Hale. The pleading charges in the language of the statute, that the defendant with intent, &c., did obtain from Hale, certain personal property, &c. That Hale was induced by the false pretences to deliver, and did deliver to the defendant, and that the defendant did receive and obtain, certain cattle. It does not, however, in terms allege a sale of the cattle from Hale to Skiff, or any other bargain, by which the property was transferred. from the one to the other; and accordingly when the public prosecutor proposed to show a bargain and sale of the cattle, by which they were transferred, the defendant objected, on the ground that no bargain and sale were alleged in the indictment. We are of the opinion that the indictment is not defective in this respect. It sufficiently alleges the facts constituting the crime. The offence consists in obtaining the property, whether this be through a sale or bailment, or in any other way. The fact is specifically alleged that the cattle were delivered to, and obtained by the defendant by means of the false pretences, that is, that they were transferred to him. And under this allegation, evidence of the manner of the transfer was admissible.

Another objection taken to the proof of any bargain and sale of the cattle, was that the property and its location was insufficiently described in the indictment to admit of any proof thereof. From the indistinctness of this objection, it is a little difficult to say what property is alluded to. But the counsel for the defendant tells us that he referred to the two pieces of land which Skiff, as the pleading alleges, pretended to own. The indictment charges the pretence of owning two pieces of land in the town of Easton, in the county of Washington, designating them as the Home farm or place, and the Van Schaack farm. This description seems to us to be sufficiently definite. It is unlike the case of The People v. Lord, (9 Barbour, 675,) where the indictment described the lands generally to be in the state of Texas.

Hale parted with his property on credit. It was part of the agreement by which Skiff obtained the cattle, that he was to give a note payable at a bank, on which Hale could get the money. On the trial, the district attorney asked the witness if the note was paid; to this question the defendant’s counsel objected, on the ground that it was not alleged in the indictment that the note was not paid. The court overruled the objection, and the defendant’s counsel excepted. There was no error in this. It was no reason for rejecting the inquiry, that the fact of nonpayment had not been alleged in the indictment. Had the objection been that the offence charged required no proof of the nonpayment of the note to make it complete, and consequently such proof was immaterial, there might have been more force in it. But then we could hardly have come to the conclusion that it was wholly irrelevant. It tended at least slightly, in Connection with other proof in the case, to characterize the quo animo of the transaction on the part of the defendant.

There is nothing in the objection that the indictment does not falsify all the pretences. It is not necessary to negative all the pretences in the indictment, or to prove all that are negatived to be false. (9 Wend. 182; 11 Wend. 567.)

2. As to the sufficiency of the proof. At the close of the testimony, the defendant’s counsel moved for his discharge, for the reasons, 1st. That by the evidence it appeared that Hale parted with his property under the understanding, on his part, that he was to receive a good endorsed note, and not on the faith of the representations made by Skiff. 2d. That Hale had not shown ordinary diligence to ascertain the defendant’s circumstances, although it was proved that he had abundant means within his power to ascertain the same. 3d. That the Court of Sessions had not jurisdiction to try the cause; and that it could only he tried in the county of Rensselaer, where the offence, if any, had been committed. The court denied the motion for discharge, holding that the questions raised involved matters of fact for the consideration of the jury.

If the fact had stood out in the case uncontroverted, that Hale was not influenced in parting with his property by the false pretences and representations of the defendant, but that he relied on an agreement that he was to receive a good indorsed note, the court should have discharged him or at least directed the jury to acquit. But this was not so. Hale expressly testifies that he was induced by the defendant’s representations of "his solvency, his ability to pay, &c., to let him have the cattle, and that except for such representations being made, he should not have parted with his property.

The case does not show that Hale did not use ordinary prudence and diligence in inquiring into the truth of the pretences. He inquired of Tabor, the landlord, and neighbor of the defendant. But the degree of prudence, and the sufficiency of the pretences to deceive, were questions of fact for the jury, and they have found against the defendant.

I do not think tnere is any force in the point as to jurisdiction. The transaction took place in the county of Washington. It was th ere the pretences were made and believed, and the cattle weighed and delivered. The sale was there consummated and possession taken of the property. The waiving, by Hale, of the giving of the note until the parties arrived in Troy, can not have the effect to change the place of making the representations and the delivery of the cattle. It is sufficiently clear from the evidence, that the offence for which the defendant was indicted, was committed in the county of Washington; that there the defendant obtained the property from Hale, and of course the Court of Sessions of that county had jurisdiction.

The judgment of the Court of Sessions of the county of Washington is affirmed.


author: Pratt, J.

text:
    Supreme Court. Onondaga General Term,
    December, 1853

      Gridley, W. F. Allen Hubbard and Pratt, Justices.

    James McGuire pl’ff in error vs. The People def’ts in error.
    To give validity to proceedings in the Oyer and Terminer, it is necessary that process for summoning the petit jury should he issued, and that it should also he returned and filed in the office of the clerk 'of the county.
    Where, after a trial and conviction for murder at the Oyer and Terminer, it appeared, on writ of error, that no precept for summoning the petit jury had heen returned and filed, the conviction was held to he erroneous and the judgment was reversed.

      It seems, also, that the issuing of the precept is necessary to give validity to the acts of the grand jury, and that, after verdict, the prisoner may, on error, avail himself of the ohjection that no precept had heen issued for summoning the grand jury. Per Pratt, J.

    Form “of an allegation of diminution — certiorari issued thereon,—return thereto — joinder in error, &c.— demurrer to joinder and joinder in demurrer.
    Error to the Onondaga Oyer and' Terminer. It appeared by the return to the writ of error that the plaintiff in error had been indicted, tried and convicted of the murder of James W. Holland, and sentenced to be executed on the 17th of August, 1853. After a general assignment of errors, the plaintiff in error made a special assignment and alleged diminution as follows:
    And the said James McGuire comes here into courf and alleges that the judgment aforesaid, in form aforesaid given, is erroneous in this to wit:—That no venire or precept was issued by the- district attorney of the county of Onondaga to the sheriff of the county of Onondaga to summon the grand jurors by whom the indictment aforesaid was presented, nor was any venire or precept served by the sheriff of the county of Onondaga upon the grand jurors or any return made by said sheriff to such venire or precept' as required by statute in such case made and provided, and the said James McGuire also alleges that the judgment aforesaid in form aforesaid given is erroneous in this to wit: That no venire or precept was issued by the district attorney of the county of Qnondaga to the sheriff of the county of Onondaga to- summon the petit jurors from whom the jury was formed by which the said James McGuire was tried and convicted, nor was any such venire or precept served or returned by the sheriff of the county of Onondaga, as required by the statute in such case made and provided. And the said James McGuire prays a writ of certiorari of the the people of the state of New York to be. directed.to the justices and judges of the Court of Oyer and Terminer in and for the county of Onondaga, to certify to the said justices of the Supreme Court in and for the fifth judicial district of the said state of New York, the truth of the same, and it is granted to him, &c. And the said James McGuire prays that the judgment aforesaid, for the errors aforesaid, and other errors in the record and proceedings aforesaid may be reversed, annulled and altogether held for nothing, and that he may be restored to all things which he has lost by occasion of the said judgment, &c.
    Dewitt C. Brown, Mt’y, Sec.

    Leroy Morgan, of Counsel.

    Whereupon a certiorari was issued as follows:
    The People of the state of New York to the Justices and [l. s.] Judges of the Court of Oyer and Terminer in and" for the County of Onondaga, Greeting:—
    We being willing for certain causes to be certified whether a venire or precept was issued by the district attorney of the county of Onondaga to the sheriff of the county of Onondaga^ to summon the grand jurors by whom a certain indictment for the crime of murder was presented to our said Court of Oyer and Terminer against James McGuire, or whether such or any venire or precept was served by said sheriff on said grand jury, or whether any return to such venire or precept has ever been made by such sheriff, and also whether a venire or precept was issued by the district attorney of the said county of Onondaga to the sheriff of the said county of Onondaga to. summon the petjt jurors from whom the jury was formed by which the said James McGuire was tried and convicted, and whether such or any venire op precept was served by the said sheriff upon the said petit jurors or returned hy him, do command you, that having searched the files and entries and other records and memoranda of the said Court of Oyer and Terminer, being in your custody of record, what you shall find therein concerning the said several venires or precepts, and return thereof, or either of them you certify, to our justices of our Supreme Court of Judicature in and for the fifth judicial district of the state of New York, without delay, fully and. entirely as the same remain in. your custody, together with this writ. Witness,. Daniel Pratt, Esq., Justice of the Supreme Court at the city of Syracuse^ the 12th day of July, A. D,, 1853.
    Barnard Slocum, Clerk.

    Dewitt C. Brown, Att’y for James McGuire.

    The following- is the return, to the writ of certiorari:

      Supreme Court.

    James McGuire, Pl’ff in Error. ) In obedience to
    vs. >
    The People of the State, of New Yode, De£’t in Error. ) the writ of certiorari, served upon me in the above entitled action, I do hereby make return thereto as follows:,
    1st. As to whether a venire or precept was. issued hy the • district attorney, of the county of Onondaga, to the sheriff of said county to summon the grand jury hy whom a certain indictment for the crime of murder was presented to, qur Court of Dyer and Terminer,, against James McGuire, X return, that I have n;o. knowledge.
    2d. As to whether such venire or- precept was served hy said sheriff upon said grand jurors, X return that I have pp knowledge.
    3d. As to whether any return to. such venire or precept has beep made by. said sheriff, I return that I haye examined the records and files in my office, and I find that no such venire or precept has been returned and filed in my office.
    4th. As to whether a venire or precept was issued by the district attorney of Onondaga county to the sheriff of said county to summon the petit jurors from which the jury was formed by which the said James McGuire was tried and convicted, I return that I have no knowledge.
    5th. As to whether such venire or precept was served by said sheriff upon the said petit jury, I return that I have no knowledge.
    6th. As to whether such venire or precept has been returned or filed in this office, I make return that I have examined the records and files in my office, and find that no such venire or precept has been returned or filed in my office. All of which is respectfully returned.,
    Witness my hand and seal, this 3d day of August, 1853.
    [l. s.] Baknakd Slocum,

      Clerk of Onondaga county and ex-officio Clerk of the Court of Oyer and Terminer therein.

    The joinder in error was as follows:

      Supreme Court,
    The People, Deft’s in Error, 1
    vs. > Joinder.
    Tames McGuire, PPff in Error. )
    And hereupon the said people of the state of New York, who prosecute by R. H. Gardner, district attorney and attorney for said people, defendants in error, thereupon freely come into court and say that by reason of anything for error assigned by the general assignment, and by the special assignment and allegation of diminution, and the return thereof of the clerk of this court to the writ of certiorari,, issued and returned in this case, the judgment aforesaid ought not to be revoked, reversed and held for nought, because they say that a precept was issued and delivered to the sheriff of the county of Onondaga aforesaid, by the district attorney thereof, to summon the said petit jurors from whom the jury was formed by which the said James McGuire was tried and convicted, and which remains on file in the office of said sheriff, and thereof they put themselves upon the country, &e. And because they say that it is not error because the said writ was not filed in the office of the clerk of the said county of Onondaga aforesaid. Nor is it error because no precept was issued and delivered to the said sheriff by the district attorney aforesaid to summon said grand jury of said county, by whom said indictment aforesaid was presented. Nor because the said sheriff did not summon said grand jury by virtue of a precept issued by the said district attorney and return made by said sheriff, and precept filed with the said clérk of Onondaga county. Nor is said judgment erroneous; nor should the same be revoked, reversed or held for nought, for any other allegation, matter or thing alleged for error, and in the said allegation of diminution and for any matter appearing by the return of said writ of certiorari. Nor is there any error in the proceedings or in giving the judgment aforesaid, and they pray that the said Supreme Court may pro oeed to examine as well the record and proceeding afore said as the matters aforesaid above assigned for error, and that the judgment aforesaid in form aforesaid given, may be in all thing affirmed. R. H. Gardner,

      Dist. Att'y and Att'y for Def'ts in Error.

    This was followed by a demurrer and joinder in demurrer as follows:

      Supreme Court.

    James McGuire, Pl’ff in Error, 1
    vs. > Demurrer to Joinder.
    The People of the State of New York, Def’ts in Error. )
    And the said James McGuire, plaintiff in error, by Dewitt C. Brown, his attorney, comes and says that the said joinder of the said defendants in error to the said allegation of diminution of the said plaintiff in error, and the matter therein contained, in manner and form as the same are above pleaded and set forth, are not sufficient in law to answer the matters set forth in the said allegation of diminution, or any part thereof, and this the said plaintiff in error is ready to.verify.
    Whereupon, for want of a sufficient joinder or answer to said allegation of diminution in this behalf, the said plaintiff prays judgment, &c, Dewitt C. Brown,

      Att’y for Pl’ff in Error.

      Supreme Court.

    The People of the State of New York, Def’s in Error, 1 said peoJames McGuire, Pl’ff in Error. ) pie, defendants in
    error, by B. -H. Gardner, district attorney, say that the said joinder and plea to said assignment of error and allegation of diminution and return and the matters therein contained, are sufficient in law to answer the matters set forth in said assignment of error and allegation of diminution and other matters alleged for error-to sustain the said judgment, and this the said defendants in error are ready to verify, and wherefore inasmuch as the said plaintiff hath not denied, nor in any manner answered the said joinder and plea in this behalf, the said defendants in error pray judgment, &c. B. H. Gardner,

      District Attorney.

      Leroy Morgan and Hervey Sheldon, for plaintiffs in error:
    I. As to the grand jury who found the bill of indictment, it is admitted by the record that no precept was issued to summon them; and as to the petit jury that tried McGuire, it is claimed that a precept was put into the hands of the sheriff, but it is admitted that none was returned or filed in the clerk’s office.
    II. The claim that one was" issued amounts to nothing; for nothing but the record comes up on this motion. It might be proper to consider it on a motion in the court below, to file it nunc pro tunc and amend the record.
    III. The case therefore stands upon the naked record, which shows that no precept or venire process was issued and returned to summon either the grand jury that found the bill of indictment, or the tietit jury which tried and convicted the prisoner. The statute of this state absolutely requires this pro™ cess. (2 Rev. St. 206, § 37 and § 38.)
    It is recognized as a process, (2 Rev. St. 438, § 69) in the statute, regulating proceedings on the election or appointment of a new sheriff, and is doubtless to be returned by the sheriff with- his endorsement of his doings thereon, signed by him-. (See § 75-77, of 2 R. S.440, 414; 2 R. S. 722, sec. 11 and 12.)
    It was necessary at common law, and is still held necessary except where it is abolished by statute. (1 Chitty’s C.r. Law, 310, 503; 1 Spencer, 218; Chase v. The State.)

    And its omisson is fatal to the conviction in this case. (18 John R. 212; People v. McKay, 2 Southard, 539; Nicholas y.The State, 1 Richardson, 188; The State v. Williams, 1 Spencer, 218; 1 R. L. 328, sec. 17; 2 R. S. 733, sec. 4; Halsted, 298.)
    IV. The revised statutes abolish this venire process in Courts of Sessions. (2 R. S. 724, § 25.) And in civil cases, (2 R. S. 410, § 9.)
    It being- still required in Courts of Oyer and Terminer it can not be dispensed with. This and the other statutes regulating the summoning and return of grand and petit jurors, being in pari materia, must be read and considered together. Spencer, Ch. J. in 18 J. R. 217.
    And in affirmative statutes, such parts of the prior as may be incorporated into the subsequent statute, or are consistent with it, must be considered in force., (3 How. U, S. R. 636.)
    And every clause and word of a statute shall be presumed to have been, intended to have some force. (22 Pick. 571.)
    If they may stand together they shall. (4 Gill, and John. 1, and see 4 Blackf. 148.)

      R. H. Gardner, (District Attorney,) for the people.
    ' I. The precept required to be. issued by the, district attorney commanding the sheriff to summon the grand jurors,” is. merely directory, arid the want, of it did not prejudice the rights of the defendant, for the following reasons, viz:

      1st. This precept is required by the 44th, section of chapter 1, title 4, and part 111 of the revised statutes, commanding the sheriff first to summon the jurors who shall have been drawn in his county pursuant to law.
    2d. To bring before the court all prisoners in prison, and to bring all process, proceedings, &c., concerning said prisoners, &c.
    ■3d. To make proclamation in the manner described by law, notifying persons bound by recognizance to appear at such court, and requiring all justices of the peace, coroners, &c., to return the writs and precepts in their hands, &c.
    This precept has nothing to do with the drawing or summoning either the grand or petit jurors. That is provided for in a separate statute to wit: title 4, chap, vn, part 3, and article 2, page 507 of volume 2 of the third edition of the revised statutes.
    If this precept was necessary, the want of it was waived by the defendant in going to trial without objection upon that ground, and it can not be objected in this way that there was any irregularity in the summoning or empanneling of the grand jury. (1 Selden’s Reports, 531.)
    This precept is unnecessary, so far as Courts of Sessions are concerned, and yet the grand jury at the sessions may indict for murder or arson. (2 R. S. 724)
    II. The statute of 1813, required the sheriff to summon the jury by virtue of a writ of venire facias, and no drawing then took place. (Laws of 1813, pages 226, 227, vol. 1; pages 339, 340, vol, 1, Laws 1813.)
    The manner of summoning jurymen for the Court of Sessions, is pointed out by section 4th of chapter 18, of the laws of 1813, pages 150, 151, vol. 2.)
    No venire is now necessary, the same being dispensed with by the laws of 1827, and by the revised statutes. (Laws 1827, page 312, § 1, 2; 2 R. S. 3 ed. page 807; Graham’s Practice, 2d ed. 273.)
    III. These matters may be amended even* after judgment, where the substantial rights of the party are not injured or prejudiced. And no pretence is made in this case that the defendant is prejudiced by the omissions complained of. (7 Wend. 417, 2 R. S. 3d ed. 519; 7 Cowen, 382; 4 Denio, 68; 4 Cowen, 550; Chamberlain v. Spencer.)

    The principle governing in cases of this kind, is that if no injustice was done the party, the court will not interfere. (People v. Vermilya, 7 Cowen, 382; 12 East. 230; 4 Barn. & Ald. 430; 5 Cowen, 289; 7 Cowen, 232; 6 Cowen, 584; 7 Wend. 417.)

         A different opinion is expressed on tins point in The People vs. Robinson, infra

   Pratt, J.

It is conceded in this case, that no precept was issued by the district attorney for summoning the grand jury, who found the bill of indictment against the prisoner. The district attorney has pleaded to the special assignment of error, that a precept for summoning the petit jury, by whom he was convicted was actually issued, and that the same is now on file in the office of the sheriff of the county. It appears, by the return of the clerk to the certiorari, which was issued to him upon an allegation of diminution, that no such precept has ever been returned to the office of the clerk of the court, and that none is on file.in this office. It is insisted by the counsel for the prisoner, that the mere issuing such precept is of no avail, but that it must be returned by the" sheriff'to the court, that it may be filed and become a part of the record, that the want of the precept and return in the record brought tip, is érror for which the judgment should be reversed.

I am inclined to the opinion, that this position is correct. The office of the writ of. error, is to bring up the record for the inspection of the appellate court, as well the judgment record as any of the out branches of the record, which are claimed to be defective.

The execution of the process of the court, can only appear by the return of the officer whose duty it is to execute it, and no action of the court, based upon the execution of such process can be regularly taken, until it shall appear by the records themselves that Such process has been duly executed.

Hence it follows, that the regularity of all the proceedings of the court should appear by the record itself, and, upon writ of error, if the appellate court upon an inspection of such record, finds any material defect in it, the judgment should be reversed.

It is not necessary to decide whether the Oyer and Terminer might not have allowed a return to have been made and filed nunc pro tunc. No such thing was in fact done, and we must pass upon the sufficiency of the record as it now is. We come back then to the question, whether the omission to issue jury process is a fatal error, for which the judgment of the Oyer and Terminer should be reversed.

. In regard to the precept for summoning the petit jury, the point has been directly adjudicated in this state, in the case of The People v. McKay, (18 J. R. 212.)

The prisoner in that case, had been convicted of murder at the Alleghany Oyer and Terminer. It was moved upon a re-, turn to a certiorari, showing that the precept for summoning the petit jury was without seal, and that no return had been made to it by the sheriff, that the judgment be arrested.

The inotipn was granted by the Court, Ch. J. Spencer, giving the opinion.

It will be seen by examining the statutes in force at that time, and comparing them with the Revised Statutes, that they were substantially the same so far as they affect the question under consideration. (See 2 R. L. 508, sec. 13, 24 to 30; 1 R. L. 328; sec. 11 and 19; 2 R. S. 206; sec. 37 and 38; 1 R. S. 339; sec. 15 and 16.)

Precisely, the same answers were made to the objection upon the argument in that case that were made upon this, to wit: that the jury were drawn and summoned pursuant to specific directions in the statute, and that a precept was therefore a mere matter of form. But the court in that case held the objection fatal, and arrested the judgment. The case was argued by very able counsel on both sides, and after careful deliberation, the decision, for aught that appears in the report, was made by the unanimous concurrence of all the members of that very able court. We should not, therefore, even if we doubted its correctness-, feel at liberty to overrule this decision; but we are satisfied that it is well sustained upon authority.

At common law, a precept to summon the jury was always necessary. (1 Chitty Crim. L. 505, 508.) The different Courts had different kinds of process, but in all the courts, process of some kind was absolutely essential. It was the authority under which the sheriff summoned the jury, and it was only upon the return of the process, that the court acquired jurisdiction to impannel the jury and try the cause. In some of the courts a special venire was necessary in each case, but before the justices of jail delivery, a general precept was issued upon which a jury of a given number were summoned, out of which a panel for the several • cases as they were tried, was awarded orally-, thus conforming somewhat to our own practice. (1 Chit. Crim. Law, 506.)

Our statute, so far from dispensing with this process, peremptorily directs -it to be issued by the district attorney of the county, at least twenty days,, before the time of holding any court of Oyer and Terminer, and in every such precept, the sheriff is commanded, among other things; “ to ¿summon the persons who shall have been drawn in his county pursuant to law, to serve as -grand and petit jurors at the said court, to appear thereat.” (2 R. S. 206, § 37, 38.) This precept is still, therefore, retained as the authority to the sheriff; and for disobedience to this, he may be attached ór otherwise made amenable for neglect of duty..

Upon the opening of the court, when proclamation is mudé for him to return the writs and precepts delivered to him, it is his duty, if he has not- before returned it, to return it theft. Those provisions for returning the jurors by officers of towns; and for drawing- the same by the 'county clerk and other officers, are made for securing the attendance of competent jurors, as well as for equalizing the burthen of jury duty among-all the competent citizens of the couhty, but they do not in any wise affect the necessity of vesting the sheriff with competent authority to summon them and-the court to impannel them. Similar provisions are contained in the English statutes, for' securing the attendance of competent jurors, and for equalizing the burthen of jury duty; but it was never supposed that such provision obviated the necessity of jury process. And a late English writer-, in speaking of jury process in civil actions, remarks “ that though the making otit the jury process, getting it duly returned and annexed to the record, is now little more than a form, it is a form, thé observance of which is so essential, 'that if it be neglected, there can be no valid trial of the cause.” (Smith on Jlciions at Lav), 125.)

Suppose the sheriff had entirely neglected to summon the jury, and that they had come together of their own accord, could a valid trial have been had in such a case? It seems to me very clear, that there could not have been a valid trial before such a jury, yet this récord furnishes no evidence that the jury were not thus impanneled in this case. It is said that the legislature has abolished jury process in courts of Sessions and in civil cases. But this fact, instead of affording an argument in favor of the right to disregard the statute requiring process to be issued for summoning jurors for courts of Oyer and Terminer, affords an argument on the other side. The fact that the legislature has retained it for the latter courts, while it has been abolished for the former, shows that the distinction was designed; and it is not for the courts to decide what the statute peremptorily enjoins may be dispensed with as a mere matter of form and as unnecessary. If the abolition of such process is found to work well in courts of Sessions and in civil cases, the legislature may hereafter extend it to all the courts; but until that shall be done by legislation, we must follow the well settled rules of law in relation to it.

That the defect is vital and constitutes error in the record, for which the judgment should be reversed, is settled by repeated adjudications, both in this country and in England.

In State v. Williams, (1 Rich. 188,) in. the Gourt'of Appeals of South Carolina, there was a motion in arrest of judgment, On the ground that the grand jury who found the bill, and the petit jury who convicted the prisoner, were summoned by writs of venire without the seal of the court. The motion was granted, and the judgment in this, as well as in three other cases in which the defendants had been indicted and tried by the same jurors, was arrested.

In a previous case, The State v. Dazin, (1 Spears, 211,) the prisoner was convicted of murder, and the same objection was taken, with the same result. I have not had access to the statutes of that state, but from what was said in the case of the State v. Crosby, (2 Harper, 90,) they provided for drawing the jury somewhat in the manner provided by the statutes of this state. It is said in that case, that the important object of obtain-, ing an impartial jury is secured by the manner of drawing them, which is not affected or controlled in the least by the manner of summoning them; that the writ of venire was the authority of the sheriff, and, as the process of the court, merely secured the attendance of the jurors. (See also State v. McElmundy, 1 St. Tr. 33.)

The case of Rogers v. Smith and another, in the King’s Bench, (1 Ad. & El. 772,) was a civil case, but particularly applicable to the point now in question. For it would scarcely be contended that less regard should be paid to errors of this kind in criminal than,, in civil cases, especially when life is involved. That was a writ of error coram nobis, and the error assigned was that there was no return of the distringas juratores by the sheriff or other officer therein mentioned, nor any panel of the jurors returned and annexed thereto.” In England, in the Queen’s Bench, there are two writs issued; the venire facias, which is made returnable at the court at Westminster, and the distringas juratores, which is made returnable at court on a day therein named, unless sooner, &e.

The former of these writs the sheriff does not' execute, but makes out a panel of the jurors and returns the names, (Smith on Actions at Law, p. 119 ) TJpon the issuing of the distringas to the sheriff, he summons the jurors whose names he has returned on the panel, and returns the same to the court with the panel annexed. In the case above cited, the error alleged was that the sheriff had made no return to the distringas, nor annexed thereto a panel of the jurors.

The Court of Queeii’s.-Bench reversed the judgment. Lord Denman, delivered the opinion of the court, and held that at common law, the want of a return or a defective return was error. (See also Cro. Eliz, 311; ib. 587; 3 Buls. 220; Cro. El. 509; 1 Roll. 295; Hob. 130; Cro. Jac. 188.)

It appears from the remarks of the author in -Smith on Actions at Law, above cited, that the issuing of these writs is mere matter of form. He says, “ in fact they are now little more than forms, for by 6 Geo. 4, C. 50, sec. 15, the sheriff is obliged to return the same panel of jurors for the trial of all common jury causes, instead of being allowed as he anciently was, to return any duly qualified persons he pleased; so that the opportunity for investigation is now given in another way, and any body may know long before the day of trial, .the names of the jury specified in this panel.” It will also be noticed by examination, that the English statute of amendments is much broader and more extensive than our statute of amendments, applicable to criminal courts. (See also Beekman v. Rye, Cro. Eliz, 587; Rowland Case, 5 Rep. 416; 3 Buls. 220; 5 T. R. 462.)

Upon the defect in the want of a venire for summoning the grand jury, it is not necessary to pass. Judge Nelson held .in the Circuit Court of the United States, in the Jerry Rescue ' Cases, that our statute-which takes away the right of challenge to the array of- grand juries, had, by implication, taken away the right to raise the objection in any form. If an. objection exists to the summoning of the-jury, which, previous to our revised statutes, would be a. good objection on a motion to quash, or upon a writ of error, and which might also be-a good objection as a ground of challenge to the array, I do not clearly perceive how the taking away the rights of challenge to -the array for such , cause, would necessarily deprive the party of his other common law remedies.

It seems to me it would rather strengthen his right to avail himself of his other remedies. The right of trial by jury, as well as the exemption from being-held to answer for crime, unless upon presentment of a grand jury, is the boast of the common law, and is guarantied by the fundamental law of both the state and national governments.

That these juries should be composed of impartial and competent men, has been the constant care of both legislatures and courts during the whole history of the. common law. And the citizen has not been compelled to rely alone upon the fidelity of public officers to secure this right, but he has always been allowed to watch the proceedings himself.

He has always been allowed the largest liberty in availing himself of any defect in the proceedings, or in any want of conformity to the prescribed forms of procedure. It is true that the legislature have removed many of these old land marks of the common law, have abolished many of those writs and processes, which were once deemed essential. Yet the courts are to follow the legislature and not anticipate its action. They should not by judicial decision, attempt to abolish those remaining requirements of the common law which the legislature have thought best to leave unmolested.

Suppose in drawing a grand jury under our statute, the clerk or some one else, should so arrange the ballots in the box that the names of persons hostile to the accused would most certainly be drawn. This would not under our statute be a cause of challenge to the array.

But is there no remedy for the accused in such easel The right of challenge to the grand jury is practically of little importance, for in many cases the accused has no knowledge that any proceedings are pending against him, until the indictment is found. But the right to object to the proceedings after the indictment is found, is one of the most important rights secured to the citizen..

The fair inference it seems to me to be drawn from the consideration of the whole subject, is, that the legislature took away the right of challenge to the array, for the reason that it was of no practical benefit, designing to leave all the other common iaw rights of the accused unimpaired. But it is not necessary in this case to place our decision on the ground of the want.of process to summon the grand jury.

We are satisfied that the objection, in regard to the want of process for summoning the petit jury was fatal, and the judgment of the Oyer and Terminer, must be reversed.

We will award a venire de novo, but we think the safer course for the district attorney would be to procure a new indictment to be found.

Gridley and W. F. Allen, JJ., concurred. Hubbard, J., dissented.

Judgment reversed.


author: By the Court, Shankland, J.

text:
    Supreme Court. Tioga General Term,
    May, 1854.

      Crippen, Shankland, Gray and Mason, Justices

    The People vs. John H. Chadwick,
    Where, in an indictment for forgery, under 2 R. S. 761, § 36, the intent charged is, to defraud the bank by which the counterfeit bills purported to have been issued, it is competent for the public-prosecutor, on the trial, to prove by parol evidence, the existence of the bank and the fact of its issuing bills without producing an authenticated copy of its charter. The rule of evidence is the same, whether the intent charged be to defraud the bank or to defraud a third person.
    The prisoner was indicted and convicted at the April term of the Court of Oyer and Terminer, in Chemung county, 1854, for having in his possession, with intent to pass the same, counterfeited bank bills, with intent to cheat and defraud the Commercial Bank, &c. On the trial certain exceptions were taken to the ruling of the court, which will sufficiently appear in the. following opinion. The cause was removed into the Supreme Court by certiorari where the same was argued at the May term, 1854, by

      D. S. Dickinson, for the prisoner.

      Edward Quin, (Dist. Att’y of Chemung county) for the people
   By the Court, Shankland, J.

The defendant was convicted at a late Oyer and Terminer held in Chemung county on an .indictment for having in his possession false, forged and .counterfeited negotiable promissory notes or bills, called bank bills, purporting to have been issued by the Commercial Bank, . a corporation or. company, lately located or doing banking business at Clyde, in the county of Wayne, in. this state, and duly authorized for that purpose by the laws of this state, with intent to utter the same as true, with intent to defraud the said Commercial Bank, knowing the same bills to be forged, &c.

On the trial the district attorney proved the existence of said bank, by evidence, that there was such a bank in fact, keeping a banking house and issuing bills, which were passing as currency, &'c. The prisoner’s counsel, before such evidence was given, objected thereto, and contended that the people must prove the existence of the bank by producing an authenticated copy of its charter, because the indictment averred an intent . to defraud the bank. The prisoner’s counsel "duly excepted to the decision; and the prisoner, having been convicted, brings the cause before this court, by certiorari. And now on. the ar'gximent'the prisoner’s counsel "mainly relies on the same" objection and contends that "the indictment, having averred an intent to defraud a corporation, its legal existence must be proved by the"best evidence thereof, viz.: its charter or articles of association.

The case of The People v. De Bow, is cited as an authority in favor "of the counsel’s position. (1 Denio, 9.)

In that case, the defendant was indicted for having in his possession forged bank notes with intent to defraud the Bank "of Warsaw. - Qn.the trial the defendant proved the existence of the Bank of Warsaw by proving the articles of association entered into by several individuals in pursuance of the act to authorize the business of banking,” by which the individuals proposed to establish a bank "in the county" of Genesee, by the name of the Bank of. Warsaw. The association never went into operation or issued any bills. The defendant insisted that the act, under which the association was formed, was unconstitutional, because it was not passed by two-thirds of the votes of the legislature, and that the Bank of Warsaw was not a body capable in law of being defrauded. It will be perceived the precise question raised in that case was, whether the law was unconstitutional, and not, what is th& character or degree of proof of the existence of a corporation required on a criminal trial where the intent is alleged to defraud such' corporation. As the only evidence of the existence of the Bank of Warsaw was the unconstitutional act and the articles formed under it, and as the bank had never acted as such or attempted to exercise any of its franchises, it followed, necessarily, that there'was no evidence of the existence óf such a bank either de facto or de jure. It was not discussed in that case, therefore, whether proof of a corporation dé facto was competent evidence of its existence or not. .In the case at bar the precise question is, whether evidence of a bank de facto, by proof of its having a banking house, issuing "bank bills which pass as currency and the exercise" of the usual banking powers, is competent and sufficient evidence of its existence on a trial against the prisoner on such an indictment as this is.

In the absence of judicial authority I should hesitate to .pronounce it sufficient, but if the principle has been settled," holding it competent and sufficient, I think "we are bound to sustain the ruling in this case.

In The People v. Caryl, (12 Wend. R. 547) it was held that on an indictment for stealing foreign bank bills it was not necessary to produce the highest evidence of the existence of the banks, such as proof of the original charters or acts of the government incorporating the companies; but, proof that there were such banks de facto was sufficient. And so, as to the bills, it was not necessary to prove by positive testimony that the names subscribed to them were in the handwriting of the officers of the banks; .but it should at least be proved by a witness familiar with the bills, that he believed them to be genuine. See also the case of Johnson v. The People, (4 Denio R. 364) where a like decision was made. So, in the case of The People v. Smith Davis, (21 Wend. R. 309) where the defendant was convicted of having in his possession counterfeit bank bills with intent to pass them, it was held that it was not necessary that the prosecution should produ'ce and prove the charter of the Morris Canal company, the corporation purporting to issue the bill, and that it was enough to prove its existence by other evidences. Nelson, J., in giving the opinion of the court, says, “under the old law (that is, previous to 1830) the existence of the company as well as the genuine or counterfeit signature of the officers (as the case might be) was frequently involved in the issue; and it must have been so in the case of altered notes; and yet secondary evidence, such as the acts and operations of the institution and the like, have been invariably received at the Oyer and Terminer.” It is true the court in that case go on to decide that under the Revised Statutes it was not necessary to prove the existence of a corporation from which the bill purports to have been issued, in order to bring the case within the statute, and that it is sufficient if the bill on its face purports to have been issued by an authorized company, yet I consider the first point above mentioned as.the enunciated opinion of the court equally with the other.

The above cases establish the rule to be that where the crime charged is the having counterfeited bank bills in possession with intent to defraud third persons, it is competent to prove the existence of the corporation or company whose bills are forged by acts of user; and that the best evidence is not required. So, too, where the crime charged is stealing bank bills. Now, is there any reason for requiring higher evidence of the existence of the corporation, in a case where the intent is charged to defraud the corporation, than where the intent is to defraud a third person? It is said, yes; because if there is no such corporation the intent charged is not possible. But it may be answered, true, but if there is no such bank its bills can Hot be forged and therefore the whole crime is impossible. The legal answer is, that in both cases the existence of the corporation must be established in order that the crime may be possible and the same kind and degree of evidence that will be sufficient to establish its existence in one case will be sufficient in the other.

It would be singular, indeed, if as between the people and the prisoner, the whole nature and degree of evidence requisite to prove the existence of a corporation, should be changed, where the object is to convict of an intent to defraud a bank by means of forged bills on its own or another bank, and where the object is to convict of an intent to defraud by passing the said bills. I see no sound reason for a distinction of the kind contended for, and repudiate its existence.

The machine and materials for counterfeiting coin, &c., found in the prisoner’s possession at the same time the counterfeited bills were, were properly received in evidence for the purpose of proving guilty knowledge of the prisoner, as to the bills, &c., in question.

The court was not in an error for refusing to charge as required by the prisoner’s counsel that the jury must be satisfied the prisoner had the spurious bills with intent to pass them within the jurisdiction of this state in order to convict.

In my opinion the prisoner was legally convicted and sentence should pass against him.

The court concurred in the above opinion, and the prisoner was sentenced to the state prison.


author: Dean, J. S. B. Strong, J.

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

      S. B. Strong, Rockwell and Dean, Justices.
    Erastus Van Zant pl’ff in error vs. The People def’ts in error.
    It is not a misdemeanor, under the statute, for an innkeeper to sell spirituous liquors to he drank on the premises, on Sunday, to persons not lodgers or travelers.
    This' was a writ of error to the Court of Sessions of the county of Rockland. The plaintiff in error was indicted in the Court of Sessions of Rockland county for a misdemeanor. The first count of the indictment charged the keeping of a disorderly house. The second and third counts charged that the plaintiff in error, being an innkeeper, sold strong and spirituous liquors to be drank in his inn, to persons not lodgers or travelers, against the form of the statute, &c. The language of these • counts is more particularly set forth in the opinion of the court The plaintiff in error pleaded not guilty to the first count and demurred to the second and third counts, and the public prosecutor joined in demurrer. The court below gave judgment against the plaintiff in error on the second and third counts.

      Andrew Fallon, for plaintiff in error.
    I. Selling liquor on Sunday is not an indictable offence at common law, and is no where in the statute declared to be a misdemeanor.
    II. The statute merely subjects the person offending against ts provisions to a penalty of two dollars and fifty cents, to be recovered by the overseers of the poor of the town where the act is committed. (2 R. S. p. 83, § 68, 4th ed.)
    III. All business was lawful on Sunday at the common law, and all acts which are not prohibited by the statute, or forbidden by the common law, may lawfully be performed on that day. (Boynton v. Paige, 13 Wend. 430; Story v. Elliot, 8 Cow. 27; Sayles v. Smith, 12 Wend. 57; 7 Barnwell & Cress. 232.)

      IV. Wher 2 a new offence is created, the remedy prescribed by the statute must be pursued and no other. (People v. Stevens, 13 Wend. 341; Clark v. Brown, 18 Wend. 220; Stafford v. Ingersoll, 3 Hill, 38; Renwick v. Morris, 7 Hill, 576; Almy v. Harris, 5 John. 175.)
    V. Where no penalty is imposed in the section of the statute prohibiting the doing of an act, nor in any other section or statute, the doing such act shall be deemed a “misdemeanor. (2 R. S. 880, § 54, 4th ed.)
    VI. There being a particular penalty prescribed for selling liquor on Sunday, and a particular remedy and method of proceeding pointed out in the section containing the prohibition, such method of proceeding must be pursued and no other. (1 Russell on Crimes, 50.)

      A. E. Suffern, for defendant in error.
    I. All disorderly inns or ale houses are public nuisances, and the keeping of such, when laid as a common nuisance, is an indictable offence at common law. (4 Black. Com. 167; Hunter v. Com., 2 Serg. & Raw. 298.)
    II. The selling of strong or spirituous liquor on Sunday in licensed inns or taverns, except in cases allowed by law, is, upon general principles, the subject of indictment at common law; in as much as it tends to a breach of the peace, disturbs public order, and is injurious to public morals. (1 Russell on Crimes, 46; 1 Haw. P. C. c. 5, § 1; 7 Cowen, 258, People v. Smith.)

    III. The statute prescribing a penalty for selling strong or spirituous liquors on Sunday, except in the cases therein excepted, and the method of proceeding, does not create a new offence; and where a statute merely attaches a new penalty to that which was an indictable offence at common law, the prosecutor may pursue either remedy. (Whart. Crim. Law, 6; 3 Hill, 38.)

      IV. The selling of strong and spirituous liquors on Sunday in a licensed inn or tavern, to others than those excepted by statute, constitutes or tends to constitute such house a disorderly house, and its keeper may be indicted for the misdemeanor; as such act from its nature prejudicially affects the proper observance of the sacred day, and the good order and morals of the community. (2 Serg. & R. 91; 1 East P. C. c. 1, § 1.)
    V. Profanation of the Lord’s day, or Sunday, is by a variety of statutes punishable, &e.; but it is also said to be indictable at common law, and there is a precedent of such an indictment against a butcher, in which he is charged to be a common sabbath breaker and profaner of the Lord’s day, and for having, within certain times mentioned, kept public and open shop, and exposed meat to sale to divers persons unknown. (1 East P. C. ch. 3.)
   Dean, J.

The plaintiff in error, was indicted in the Rock-land sessions,- for keeping a disorderly house, and also for selling on Sunday, while a licensed inn keeper, strong and spirituous liquors to persons other than travelers or lodgers. To the count of the indictment charging the keeping of a disorderly house, he pleaded not guilty. To the other counts he demurred. The Court of Sessions held the counts, to which the demurrer was interposed, sufficient, and ordered judgment against the defendant, who brought a writ of error to this court. The first count demurred to is, that the said Erastus Vanzant being the keeper of an inn or tavern in said town of Ramapo, in the county of Rockland afqresaid, heretofore to wit: on Sunday the first day of May, in the year of our Lord 1853, and on divers Sundays between that day and the finding of this inquisition, and while the said Erastus Vanzant, was the keeper of such inn or tavern at Ramapo, willfully and unlawfully, and contrary to the provisions of the statute in such cases made and provided, did sell and dispose of strong and spirituous liquors to one Archibald Cooper, to be drank in-the inn or tavern of the said Erastus Vanzant, the said Archibald Cooper then and there not being a lodger in such inn or tavern, and the said Archibald Cooper then and there not being a person actually traveling on said first day of May, and on the said divers other Sundays above mentioned, in the cases allowed by law; and other wrongs and misdemeanors then and there did, to the evil example of all others, in like cases offending 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.” s

The charge expressed in other language is that Vanzant being an innkeeper, sold on Sunday strong and spirituous liquors to Archibald Cooper, the said Cooper not being a traveler or lodger.

The second count is, “ that the said Erastus Vanzant, being the keeper of an inn or tavern in the town of Ramapo aforesaid, heretofore to wit: on Sunday the first day of May, in the year of our Lord 1853, and on divers other Sundays between that day and the finding of this inquisition, and while the said Erastus Vanzant was the keeper of such inn or tavern at the said town of Ramapo, willfully and unlawfully, and contrary to the provisions of the statute, in such case made and provided, did sell and dispose of strong and spirituous liquors to divers persons, to the jurors unknown, to be drank in the inn or tavern of the said Erastus Vanzant, the said divers persons, to said jurors so unknown, then and there not being lodgers in such inn or tavern, and not being persons actually traveling on the said first day of May last aforesaid, and on the said divers other Sundays last aforesaid, in the cases allowed by law; and other wrongs and misdemeanors then and there did, to the evil example of all others, in like cases offending against the form of the statute, in such case made and provided, and against the peace of the people of the state of New York, and their dignity.”

The charge here is that Vanzant, on different Sundays, sold strong and spirituous liquors to divers persons, other than lodgers and travelers.

Both counts contain the allegation that Yanzant was an innkeeper, also that he did these acts, contrary to the provisions of the statute, that the liquors sold were to be drank in the tavern of Yanzant, and that the persons to whom they were sold were not lodgers or travelers. This raises the question whether for an innkeeper to .sell liquors to.be. drank on the, premises on Sunday, to persons, other than those excepted in the statute, is a misdemeanor.

Title IX, part 1, chap, xx, of the R. S. entitled of excise and. the regulation of taverns and groceries,” provides that “ all offences against the provisions of this title, shall be deemed misdemeanors, punishable, by fine and imprisonment.” But in no part of this title is there any prohibition against selling on Sunday; on. the contrary, the license by the words, of the statute allows the innkeeper to, sell strong and spirituous liquors and wines, to be drank in his house,” and contains no language, excepting Sunday from the general operation of the license: by this, title therefore, it is not a misdemeanor to sell on Sunday.

Article eighth, of title VIII, part 1,' chap, xx, of the R. S„ entitled “ Of the better observance of Sunday,” provides that “ no keeper of an inn or tavern, or of any alehouse, or porterhouse, or grocery, nor. any other person authorized to retail strong or spirituous liquors, shall, o.n Sunday, sell or dispose of any ale, porter, strong or spirituous liquors, excepting to lodgers in such inns or taverns, or to persons actually traveling on that day in the cases allowed by law. Every person offending against this provision, apd being thereof duly convicted, shall forfeit the sum of two dollars and fifty cents.” There is no part of the statute which makes a violation of this section a. misdemeanor. T-hg general provision in reference to violations of statutes is, “ where the performance of any act is prohibited . by any statute, and no penalty for the violation of such statute is imposed, either in the same section containing such prohibition or in any other section or statute, the doing such act shall be deemed a misdemeanor.” The converse of this is equally true, that where there is a penalty provided for the violation of a statute, and neither that or any other statute declares it a misdemeanor, the party committing the violation is liable for the penalty only. A distinct penalty is provided for this offence; the mayor, recorder, or any alderman of a city, or a justice of the peace, may punish for all these violations, but no where by statute is the person offending against the provisions for the observance of Sunday declared guilty of a misdemeanor. As both these counts are clearly drawn for violations of the statute, I might leave this case here, but I have examined to ascertain whether at common law an innkeeper is indictable for selling liquor on Sunday, and am satisfied that the mere act of selling on Sunday, is no more an indictable offence than making a contract or selling a horse. But a person may do either, that is, he may dispose of horses or sell liquor,' in such a manner as to be guilty of a misdemeanor at common law.

The Sabbath is a recognized institution. Whatever openly violates its sanctity and interferes with its proper and orderly observance, is indictable. A case is reported where a butcher was indicted for commonly keeping open shop and exposing meat to sale on Sunday. If an innkeeper chooses so far to disregard the proprieties of the day, as commonly to keep his house open, and publicly sell spirituous liquors to persons other than travelers and lodgers, so" that inhabitants of the neighborhood are by that me.ans induced to frequent his house and habitually congregate there to drink on Sunday, he is indictable and deserves a punishment quite as severe as one who sells without a license. But as the two counts of the indictment under consideration are both drawn under the statute, and are without the necessary averments to make an offence at common law, the plaintiff in error is entitled to judgment.

S. B. Strong, J.

The second and third counts of the indictment, to which a demurrer was interposed, and upon which'the judgment of the court below against the defendant was rendered, were against a regularly licensed tavern keeper, for selling spirituous liquors on the sabbath, to persons other than actual travelers or lodgers. No statute declares this to be a misdemeanor. The statute prohibiting it imposes a penalty of two dollars and fifty cents, and the statute declaring that the violations of statutory prohibitions shall be deemed misdemeanors, limits its application to cases where no penalty is imposed either in the same section containing the prohibition, or in any other section or statute. The maxim inclusio unius est exclusio alterius is peculiarly applicable to criminal cases. The judgment of the court below should be reversed.

Judgment reversed and judginent. for plaintiff in error on demurrer.


author: Greene, J.

text:
    Supreme Court. Erie General Term,
    February, 1855

      Bowen, Marvin and Green, Justices.

    The People vs. James Randolph.
    Although, hy the common law of England, a person under 14 years of age ia conclusively presumed to he incapable of committing the crime of rape, in this state the presumption is not conclusive, and may be overcome, by showing that the party charged had attained to puberty.
    So much only of the common law of England wasjin force in the colony, on' the 19th day of April, 1775, as was applicable to our circumstances and condition.
    The principles of the common law are the same under all circumstances; but its rales, or the results of the application of the principles, will vary with the facts to which it is applied, or the conditions under which the application is made.
    The presumption of the incapacity of a person under 14 years of age to commit a rape can only be overcome by clear proof of capacity; and where, on the trial at the Oyer and' Terminer, the presiding judge submitted to the jury the question of capacity, on evidence strongly suggestive of doubt, if not entirely reconcilable with innocence, and the jury found the prisoner guilty, the conviction was reversed and a new trial awarded.
    This was a certiorari from the Orleans Oyer and Terminer, where the defendant was convicted of rape. On the trial before Mr. Justice Bowen, it was proved on the part of the prosecution by the complainant, a girl upwards of fourteen years of age, that in July, .1853, the prisoner violently assaulted and threw her down upon the ground and with his private member penetrated her private parts; that the prisoner with two other boys, one fourteen and the other ten years of age, had followed the complainant and another girl to a field a considerable distance from her residence, and that while following her, he stated to the boys with him, that he was going to have connection with her. It was also proved by the mother of the complainant, that she examined her in the evening of the same day and found marks of violence on her shoulders and back and saw on her under garments at places below the knees of the girl, and on the back and front of her garment, several spots of a yellowish color which were dry. The prisoner gave evidence tending to prove that at the time of the alleged offence he was under fourteen years of age. The counsel for the prisoner requested the court to charge the jury, that if the prisoner was under fourteen years of age at the time of the alleged offence, he could not be convicted of rape. The court refused so to charge and the defendant excepted. The court charged the jury, that prima facie a person under fourteen years of age was incapable of committing the crime of rape, but if the prisoner had in fact arrived at puberty, he might be convicted although under fourteen years of age; that, if the evidence showed that he was at the time capable of emission, that was sufficient proof of puberty, and that the fact of his following the complainant when he saw her go into the field, with the avowed intent to have connection with her, was a circumstance which the jury might take into account as evidence on that question. The counsel for the prisoner excepted to this charge and requested the court to charge, that there was not sufficient evidence to establish puberty and actual capacity to commit the crime of rape. The court refused so to charge, and the counsel for the prisoner excepted. The jury found the prisoner guilty of rape, and also found, under the direction of the court, that the prisoner was at the time of the commission of the offence under fourteen years of age. Whereupon his counsel moved the court to direct a verdict of not guilty, which the court refused to do, and the counsel for the prisoner excepted

      Noah Davis Jr., for the prisoner.

      B. L. Bessac, (District Attorney) for the people.
   Greene, J.

The proposition is neither disputed nor disputable that by the common law of England as it has been settled for several centuries, a person under fourteen years of age is conclusively presumed to be incapable of committing the crime of rape. The jury have found that at the time laid in the indictment the prisoner was under that age and have convicted him of this crime; and the question arises on this bill of exceptions, is the rule above stated a part of the law of this state. The counsel for the prisoner relies1 upon the 17th section of the first article of the constitution by which it is provided, among other things, that “ such parts of the common law and of the acts of the legislature of the colony of New York as together did form the law of said colony on the 19th day of April, 1775, shall be and continue the law of this state subject to such alterations as the legislature shall make concerning the same.” By virtue of this provision it is claimed that the rule in question (which was, as we have seen, the settled rule of the common law as it was then administered in England) became, and has since continued to be, the law of this state.

•' It is apparent that this argument rests upon the assumption that all the rules bf the common law in force in England at the time in question were also in force in the colony of New York, and of course, the soundness of the argument depends upon the truth of this assumption. The common law consists of those principles and maxims, usages and rules of actipn which observation and experience of the nature of man, the constitution of society and the aifairs of life have commended to en lightened reason, as best calculated for the government" and security of persons and property. Its principles are developed by judicial decisions as necessities arise from: time to time demanding the application of those principles to particular cases in the administration of justice. The authority of its rules does not depend upon positive legislative enactment, but upon the principles which they are designed to enforce, the nature of the subject to which they are to be applied and their tendency to accomplish the ends of justice. It follows that these rules are not arbitrary in their nature nor invariable in their application, but from their nature as well as the necessities in which they originate, they are and must be susceptible of a modified application suited to the circumstances under which that application is to be made.

The principles of the common law, as its theory assumes and its history proves, are not exclusively applicable or suited to one country or condition of society, but on the .contrary, by reason of their properties of expansibility and flexibility, their application to many is practicable. The adoption of that law in the most general terms, by the government of any country, would not necessarily require or admit, of an unqualified application of all its rules without regard to local circumstances, however well settled and generally received those rules might be.

Its rules are modified upon its own principles and not in violation of them. Those rules being founded in reason, one of its oldest maxims is, that where the reason of the rule ceases the rule also ceases.

The language of the constitutional provision above quoted is, “ such parts of the common law as were in force on the 19th day of April, 1775, shall be and continue the law of this state. The question is, what parts of that law were then in force here. With the exception of such parts as had previously received the direct sanction of legislative enactment, which is not claimed for this rule, the authority of the common law re suited from our colonial dependence upon England. Upon the principles already stated, so much only of the common law was in force in the colony by virtue of that relation as was applicable to our circumstances and condition. This proposition is also sustained by the highest authority. In treating of the countries subject to the laws of England, Sir Wm. Blackstone says, “it hath been held, that if an uninhabited country be' discovered and planted by English subjects, all the English laws then in being, which are the birthright of every subject, are immediately there in force. But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law as is applicable to their own situation and the condition of an infant colony, such, for instance, as the general rules of inheritance and of protection from personal injuries. (1 Black. Com. 107.) Chancellor Kent, (1 Com. 472,) lays down the same rule with regard to the extent to which the common law was applicable in the colonies, and of its subsequent adoption by the constitutions of the several states the common law,” he says “ so far as it is applicable,” “ has been recognized and adopted as one entire system by the constitutions of Massachusetts, New York, New Jersey and Maryland. It has been assumed by the courts of justice, or declared by statute with the like modifications, as the law of the land in every state. It was imported by our colonial ancestors, as far as it was applicable, and was sanctioned by royal charters and colonial statutes.” This apparently qualified adoption of the common law is, after all, nothing more nor less than an adoption of its essential principles, the application of which to our circumstances, would result in a modification or entire change of some of its rules, which are nothing more than the result of the application of general principles to particular facts. The principle is éssentially the same under all circumstances, but the rule', or result of its application, will vary with the facts to which it is applied, or the conditions under which the application is made.

We have then only to consider the nature of this rule, and compare the facts and conditions in which it originated with those from which it is now sought to be deduced, in order to determine whether it does or ever did prevail in this state. It is a mere rule of evidence, a presumption of law arising upon a given state of facts. . The principle of the law of presumptive evidence, is, that when experience shows a uniform connection or inconsistency between any two facts, upon proof of one of those facts, the existence or the absence of the other will be conclusively presumed, according to,the uniform result of such experience. When the result of that experience is not universal hut general, the presumption still exists, hut applies with diminished force. In such cases it is not absolute, but prima facie.

The rule contended for by the prisoner had its origin in a country and at a time where males seldom if ever arrived at puberty before the age of fourteen years. Hence the rule was the natural result of the application of the above principle to that acknowledged fact. But it is a fact equally well, and I apprehend much better known, that in other races of men, and indeed in the same race, under the influence of different circumstances of climate and habits of life, this condition may be and is often developed at a much earlier period; and where this fact is known to exist, a modification of this rule of evidence seems to me to be the necessary result of the application of a familiar principle of law to the fact. No principle is thus vio lated, but the rule is changed by the operation of the principle

I think it must be apparent to the most casual "observation, that however well adapted this rule may be to the climate and population of the country where it prevails, the same circumstances render it equally inapplicable in this state, having a population composed of almost every variety of races and a climate, as various as its population. It may still be true in many, perhaps in a majority of cases, that the condition of of puberty is not attained before the age of fourteen; but that this is universally true, or so nearly so as to justify an absolute presumption of the fact, can not be, and indeed is not claimed. We have seen that it can not be sustained upon principle as an arbitrary rule of universal application, and no authority has been found showing its recognition as such in this state.

In the case of Williams v. The State, (14 Ohio Rep. 222,) it was held that the rule as administered in England was not applicable in that state for reasons similar to those already suggested, that the presumption that an infant under fourteen years of age was incapable of committing a rape, might be rebutted by proof that he had arrived at puberty. I agree entirely with the learned .judge who delivered the opinion of the court in that case as to the soundness of the rule laid down by . him, and the reasons by which it is vindicated; but I think as I have endeavored to show, that he has unnecessarily and erroneously assumed that the application of that rule involves any departure from long established legal principles.” It follows that the charge of the court below on this point was correct.

It was assumed at the trial and on the argument, that the condition of puberty was indispensable to the capacity of the prisoner to commit this crime, and that the fact must be proved in order to justify a conviction; and notwithstanding the provision of the revised statutes I am inclined to regard this presumption as the most reliable exponent of the results of general experience, .and the rule founded upon it, as laid down at the trial as the only safe rule in such cases.

The question then arises, was the fact of puberty proved in this easel For the purpose of establishing this fact, thé prosecution proved, that upon an examination of the complainant, the evening after the alleged offence, spots of a yellowish color were found on the back and front parts of her under garments below the knees. No evidence was given tending to show that these spots were actually produced by a deposit of semen, or that such appearances would naturally or probably be produced by Such deposit, and it seems to me that the connection between such appearances and the alleged cause can rest upon nothing more tangible or rational than conjecture. It was also pióvéd that the prisoner, in company with two other boys, followed the complainant into a field a considerable distance from her residence, and that while following her, the prisoner stated to the other boys that he was going to have connection with her. The court charged the jury, in substance, that this statement was evidence tending to show that the prisoner had arrived at puberty. With great deference, I must say, that I have not been able so to understand the tendency of this evidence, I can see no natural connection between this statement and the fact which the prosecution sought to infer from it. It seems to me quite as reasonable and natural to regard it as the idle and thoughtless boast of a boy, who had no definite notions of the act of which he was talking, and as little capacity to commit it. Upon such evidence as this the conviction of a boy ten years old of this crime would be no impossible, and I might add, no improbable occurrence. The prisoner was proved to have been of an age when the law presumes him to be incapable of committing this crime, and it was the duty of the prosecution not only to meet but to repel this presumption by clear proof of his capacity. And if I am mistaken in supposing that no proof of this fact was given, still I can not but regard it as extremely dangerous to allow evidence so weak and inconclusive, so strongly suggestive of doubt, if not entirely reconcilable with innocence, to prevail against a presumption founded alike in reason and experience, so important to the protection of the innocent against unfounded prosecutions for the crime, the proof of which rests entirely with the complainant, and against which, when instigated by malice, cupidity or the temptations which disappointed, unregulated or vicious passion may suggest, even innocence is not always a sure defence. I have been forced, by the examination of this case, to the conclusion, that the learned justice who presided at the Oyer and Terminer, erred in the charge upon the point last mentioned, and also in submitting the case to the jury upon the question as to whether the prisoner had arrived at puberty at the time of the alleged offence. In my opinion this conviction can not be sustained without establishing a very dangerous precedent. The conviction must be reversed, and a venire de novo awarded,

       On a subsequent trial the prisoner was convicted of an assault and battery only—vide infra.


author: Clerke, J. Mitchell, J.

text:
    Supreme Court. New York General Term,
    April, 1855.

      Mitchell, Morris and Clerke, Justices.
    The People vs. Michael Donnelly, impl’d with Beales and al.
    Where several persons are jointly indicted, one of them is not a competent witness for or against the others, without'being first acquitted or convicted; and it makes no difference whether the defendants plead jointly or separately. An accomplice separately indicted is competent.
    The defendant had been convicted partly on the testimony of a defendant jointly indicted with him without discharging such codefendant from the record.
   Clerke, J.

It is well settled and I believe never questioned in this state or in England, that where several persons are jointly indicted, one is not a competent witness either for or against the. others, without being first acquitted or convicted; and it makes no difference whether the defendants plead jointly or separately; an accomplice, however, separately indicted is.r competent. Whether there is any good reason for this distinction, it is unnecessary to inquire on the present occasion.

Beales, although a joint defendant, was admitted as a witness against Donnelly in this case, without discharging him from the record.

The judgment should be reversed and a new trial ordered,

Mitchell, J.

In 1 Ryan & Moody, 401, (Rex v. Rowland and others,) the counsel for the crown moved to have an acquittal against two of the defendants, that he might use them as witnesses. It was treated as necessary and allowed. (See also the note there.) So a case is stated in Cases Temp. Hardwicke, 163, where on an information at the suit of the crown, it was deemed necessary to enter a nol. pros, against one of the defendants before examining him against the others. Our own courts have decided that one defendant in an indictment can not be a witness for another; it can not be on the ground of interest, for there is no interest either way; and if it be because he is a party to the record, it applies whether he be called for the people or his codefendants.

Judgment reversed and new trial ordered.