author: Parker, J.

text:
    Supreme Court Albany General Term,
    May, 1851.

      Watson, Parker and Wright, Justices.
    Houghtaling vs. Kelderhouse and others.
    A person convicted of perjury is an incompetent witness, though he has heen pardoned by the governor, aud the pardon purports to restore him to all his civil rights, the legislature having provided that such convict shall not be received as a witness till such judgment he reversed. Such is the law, though the exclusive power of pardon be vested in the governor.
    Such incapacity to testify is the result of a rule of evidence and not a punishment of the offence.
    Where a defendant proves the making of an admission by the plaintiff, the latter has a right to give evidence in explanation of the admission and to have the witness state all that was said upon the subject at the time.
    This suit was originally commenced before a j’uslice of the peace in assumpsit on a promissory note. The defence was usury. The plaintiff recovered before the,justice on the 4th of September, 1846. The defendant appealed, and the cause was tried in the Albany common pleas, where the plaintiff also recovered. On the trial in the court of common pleas, several exceptions were taken by the defendant’s counsel, who brought a writ of error to this court. The facts appear sufficiently in the opinion of the court.

      II. G. Wheaton, for the plaintiff.

      R. W. Peckham, for the defendant.
   By the Court,

Parker, J.

The most important question in this case is whether James R. Brice, who was offered on the part of the defence, was a competent witness'? It appeared that he had been convicted of perjury in this state and sent to the state prison in 1834, and was pardoned by the governor in 1840. The pardon expressly purported to restore him to all his civil rights. The court below held he was still incompetent as a witness, under our statute, and refused to admit him to testify; to which decision the defendant’s counsel excepted.

The statute (2 Rev. Stat. 567, 2d ed. § l] provides that a person convicted' of perjury “■ shall not thereafter, be received' as a witness to be sworn in any. matter or cause whatsoever, until the judgment against him be reversed.” . In all other cases of felony the person convicted is declared incompetent to testify unless he be pardonéd [2 Rev. Stat. 586, §23]. The statute, therefore recognizes the efficacy of a pardon, to restore the competency of a witness in all cases of conviction, except for per jury.

It is urged by the defendant’s counsel that inasmuch as the exclusive and full power to pardon, for all' offences except treason and in cases of impeachment,, was vested by the constitution in the governor [Const, of 1821, art. 3, § 5], the legislature had no power to restrict the operation- of the pardon, in a case of perjury; and that therefore the effect of the pardon in question was to render Brice a competent witness.

The doctrine of a restoration of the competency of a witness by pardon, is comparatively of modern origin. Lord Coke (2 Buls. 154) is an authority against it. The maxim recognized was Poena potest tolli, culpa perennis erit.” But at a later day the doctrine was established by Lord Holt and others, in several decisions. (Rex v. Ford) 2 Salk. 691; Rex v. Greepe, id. 514; Rex v. Crosby, id. 689; 3 Salk. 155.) It was then held that when the conviction was at common law, in which case an inference was only a consequence of the judgment, the king’s pardon restored the party to his testimony; but when the conviction was for perjury, upon the statute, the person convicted could not be restored to his credit by the king’s pardon; and the reason assigned was that by the statute it was part of the judgment that he be infamous and lose the credit of testimony. In such case it was held he might be restored by a statute pardon. (2 Salk. 691; Dives v. Mestayer, 5 Esp. Rep. 94; Bull. N. P. 292; Phil. & Ames on Ev. 21, 22; 2 Harg. Jur. Arg. 221.) The statute on which that opinion was based was 5 Eliz. Ch. 9, § 6, which provided that when a person was convicted of perjury under that act “ the oath of such person or persons fo offending, from thenceforth shall not be received in any court of record within this realm of England and Wales, or the marches of the same, until such- time as the judgment given against the said person or persons shall be reversed by attaint or otherwise.”

The cases above cited show that in England,- in case of a conviction under this statute, competency as a witness might be restored by a statute pardon, though the king’s pardon was ineffectual for- that purpose. And it is claimed that inasmuch as in this state the legislature has no power to pardon for such offence, but the exclusive power is vested in the governor, his pardon must be effectual to restore the convict’s competency. This is certainly very plausible reasoning; and if there were no interests concerned except those of the convict, that is to say, if the incompetency to testify was merely a punishment for the offence, I should deem the position impregnable. It must be conceded that full power to pardon in case of perjury is vested in the governor; and I think that power exclusive. In this respect the distribution of powers,, in our state, differs somewhat from that of the English government, where pardons may sometimes be granted by act of parliament. (2 Black. Com. 402; Fort. 43; 2 Hawk. P C. 397.)

But though the legislature of our state has no authority t« grant a pardon for perjury, it has full power to say who shah be competent witnesses. It may by statute admit or exclude any class of persons, such as parties, or persons interested, or those convicted of crimes. The admissibility of all witnesses is a matter entirely within legislative control and subject to its regulation. It is true the disqualification of a person convicted of perjury may operate, to some extent, as a punishment of the convict. But whether such testimony shall be received, is a question in which others have a much larger interest. It is a question of public policy, with regard to which there may well be differences of opinion. On the one side, it may be said parties ought not to be deprived of- such testimony, at the hazard of being unable to establish a legal right. On the other hand, it may be urged that such testimony would be dangerous to the rights of litigants, and unsafe in- the administration of justice. The legislature, in deciding this question, have regarded the latter argument as outweighing the former, and have excluded the evidence. And although this disqualification has been regarded as part of the judgment, yet I think it not merely a penalty for the offence, but an enactment of a rule of evidence within the legislative jurisdiction and beyond the reach of an executive pardon. I concur entirely in the view on this subject expressed by a writer in the American Jurist (11 Jim. Jurist, 360), who says, But although an incapacity to testify, especially considered as a mark of infamy, may really operate as a severe punishment upon the party, yet there are other considerations, affecting other parties, which may well warrant his exclusion from the halls of justice. It is not consistent with the interests of others, nor with the protection which is due to them from the state, that they should be exposed to the peril of testimony from persons regardless of the obligation of an oath; and hence on grounds of public policy, the legislature may well require that, while the judgment itself remains unreversed, the party convicted shall not be heard as a witness. The statute of Elizabeth itself seems to place the exception on the ground of a rule of evidence and not on that of a penal fulmination against the offender. The intent of the legislature appears to have been not so much to punish the party by depriving him of the privilege of being a witness or a juror, as to prohibit the courts from receiving the oath of any person convicted of disregarding its obligation.”

It will be observed that the language of our act is very similar to that of the English statute. Both declare that the testimony shall not be received. The writer in the Jurist above quoted, commented on the fact that the act of Congress (Stat. of U. S. Ap. 3, 1790, § 18) which declares the offender shall thereafter be rendered incapable of giving testimony, &c., until such judgment be reversed, has more the appearance of a penalty upon the offender than the language of the English act. But the statute of this state is certainly liable to no such criticism, and I doubt whether it will be recognized whenever the question shall arise under the act of Congress. It seems to me that whether the statute pro vides that he shall be incapable of giving testimony, or says that his testimony shall not be received, in either case it will be viewed as a rule of evidence, though it may also be a punishment of guilt.

This view of the law is taken in 1 Greenleaf's Evidence 378 (note) and was acted upon by Chancellor Kent in Holdredge v. Gillespie (2 Johns. Ch. Rep. 35), who excluded the deposition of a witness that had been convicted of perjury, though he had been pardoned by the governor, on the ground that the statute declared him incompetent till the judgment was reversed. The statute then in force (1 Rev. Laws, 171) was similar to the provision of the revised statutes above quoted.

It is said a construction ought not to be given to the statute that would deprive the governor of the power to relieve by pardon, when it might be discovered, too late to obtain a reversal of the judgment, that the party was innocent. The answer is that if the legislature has power to deprive others of the benefit of his testimony, they must also have power to restore it. And the parties interested, so far from being remediless, would have only to apply to the legislature instead of the governor for relief. I am therefore of the opinion that the court below decided correctly in rejecting Brice as a witness.

There were other exeeptions taken on the trial in the court below that remain to be considered. After the plaintiff had rested, the defendants called Robert Frazier, and proved by him an admission made by the plaintiff that he was in danger of losing the amount of the note in question, because he had re ceived more than lawful interest. The plaintiff’s counsel then cross examined the witness. In the course of the cross examination the witness testified that the plaintiff said “ he had received a new note, and that was worse than the old one.” On a further direct examination the defendant’s counsel asked the witness if the plaintiff stated why the new note was worse than the first? This was objected to by the plaintiff’s counsel, and the answer was excluded by the court; to which decision the counsel for the defendant excepted. This decision was clearly erroneous. There was no objection to the form of the queslion. The plaintiff’s counsel had called out an additional admission, and it was the right of the defendant’s counsel to inquire further in regard to it, and to have all that was said upon the subject at the same time.

I think there were other errors committed in excluding evidence on the cross examination of Slingerland, but it is not necessary to examine them at length, for the error I have already pointed out requires a reversal of the judgment.

The judgment must be reversed with costs, and a new trial awarded in the Albany county court.


source: Caselaw Access Project

author: Wells, Justice,

license: Public Domain

text:
    Supreme Court. Monroe General Term,
    June, 1851.

      Welles, Taylor and Johnson Justices.
    Louis Baron plaintiff in error vs. The People def’ts in error.
    Where a verdict in a criminal case is appropriate to one or more good counts in an indictment, and can be deemed to have been passed upon and to have disposed of the others, the good counts are established and the verdict will stand, notwithstanding there may be bad counts in the indictment: hut if it appear that some of the counts are undisposed of by the verdict, the judgment rendered on such verdict will he reversed.
    An accessory can not be tried before the trial and conviction of the prin.cipal offender.
    An accessory may be indicted and tried in the county where the offence of the accessory was committed, notwithstanding the principal offence was committed in another county, hut the accessory can not be indicted and tried in the county where the principal offence was committed, unless his offence as accessory was committed there.
    This was a writ of error to the court of sessions of Ontario county.
    The plaintiff in error was indicted in the court below, the indictment containing seven counts, substantially as follows: 1st. For burglary and larceny.
    2d. The same, being a second offence; stating the conviction for the first offence to have taken place in Monroe county general sessions. 3d. Charges that Samuel Hicks, Stephen Cross, Manlius Card, Hiram J. Clark, Benjamin F. Yerkes and William Ack-ley on the 29th day of June 1849, committed a certain burglary and larceny in the town of East Bloomfield, Ontario county, setting out the offence particularly; that Baron (the defendant in the court below), on the 3d of October, 1842, was convicted of burglary and larceny in the court of general sessions of Monroe county and sentenced to the state prison for five years; that after he had suffered the full term of imprisonment according to such sentence, and on the 29th day of July, 1849, said Baron did incite, move, procure, aid, counsel, hire and command the said Hicks, Cross, Card, Clark, Yerkes and Ackley to commit the said burglary and larceny in this count first mentioned.
    4th. Substantially like the third, alleging that the said Hicks, Cross, Card, Clark, Yerkes, and Ackley were indicted, &c., for the said burglary and larceny, and that Ackley had been tried and convicted thereon, front fatet per recordum — in other respects, this count is similar to the third.
    5th. For grand larceny, alleging the property stolen to be the property of Moses Sheppard.
    6th. Like the 5th, alleging the property stolen to be the property of some person or persons to the jurors unknown.
    7th. Like the 5th, alleging the property stolen to be the property of Luther Sheppard and Moses Sheppard.
    The defendant in the court below pleaded not guilty to the said indictment, and was tried and convicted in that court in February, 1850. The verdict of the jury, as appears by the record, is in the following words, viz.: “ That the said Louis Baron is guilty of the felony aforesaid as an accessory before the fact, and for a second offence, as by the indictment aforesaid is above supposed against him.’'’ Upon this verdict, the court below gave judgment against the defendant, that he be imprisoned in the state prison at Auburn for the term of nine years, eight calendar months and twenty days.
    Various questions arose upon the trial, which are sufficiently adverted to in the opinion which follows.

      E. G. Lapham, and Ji. Worden, for plaintiff in error.

      S. V. R. Mallory (district attorney), for defendants in error.
   Wells, Justice,

delivered the opinion of the court as follows:

I. The first point made for the plaintiff in error is, that the verdict and judgment is uncertain; that it does not appear for what offence the conviction was had, and that it is not found that any principal offence was committed by the direction or order of the defendant below, and it is contended that the first 9 fifth, sixth and seventh counts of the indictment ar£ not disposed of in any way by the verdict. The indictment contained seven counts — among them, is one for a second offence of burglary and larceny— another charges that six other persons were indicted for burglary and larceny, and one of them, Ack-ley, was convicted. It does not state whether any of them besides Ackley had been tried. It is to be taken therefore, for the purposes of this case, that Ackley was tried separately and that the others have not yet been tried. The count then charges a previous burglary and larceny by the defendant Baron and a conviction and judgment thereon, before the commission of the said offence by Ackley and the others who were jointly indicted with him, and that the defendant Baron did. incite, move, procure, aid, counsel, advise and command the other six, iucluding Ackley, to commit the burglary and larceny for which they were indicted, &c.

The finding of the jury as appears from the record in this case is, that “ the said Louis Baron is guilty of the felony aforesaid as an accessory before the fact, and for a second offence of larceny, as by the indictment aforesaid is above supposed against him.”

If the verdict is appropriate to any one or more good counts in the indictment and can be ‘deemed to have passed upon and disposed of the others, the good counts are established, and the verdict should stand, notwithstanding there may be bad counts in the indictment.

The rule is different in a civil case, where there are several counts in the declaration and a general verdict with damages, for in such case, if there is a bad (fount joined with others that are good, the court can not know but the damages are assessed in whole or in part upon the bad count. But in the case of an indictment a general verdict of guilty proves that all the counts are true, the good as well as the bad ones, and it is presumed the court in rendering judgment measured the punishment upon the good counts alone.

The verdict in this case pronounces the defendant below guilty of the felony as an accessory before the fact and of a second offence of larceny as charged in the indictment. There are three counts for simple larcenies alone and one for burglary and larceny. Does this finding by fair intendment, dispose of those counts'? If it does not, it seems to me the judgment is erroneous. The defendant is neither convicted nor acquitted upon them, and upon another indictment for the same offences could neither plead autrefois acquit or autrefois convict.

The language of the verdict as contained in the record “ felony aforesaid,” is broad enough to apply to all the counts, but the words “as an accessory before the fact,” immediately follow, which limit and restrict their meaning to the two counts charging him as an accessory.' This seems to be the fair interpretation of the language of the record. It is not like the case of an indictment for a crime, under which the accused may be convicted of another offence of the same character, hut of a minor degree— as, for instance, an indictment for murder and a conviction for manslaughter, or an indictment for an assault and battery with a felonious intent and a conviction for the simple assault and battery.

But it is a question of construction of the language of the record merely, whether the finding of the jury, as contained in the record, can be understood to apply or refer to the three counts for simple larceny. The verdict proceeds to say that the defendant below is guilty “ of a second offence of larceny,” and concludes “as by the indictment aforesaid is above supposed against him.” These words apply to both branches of the finding, that of guilty of the felony as an accessory and of the second offence of larceny.

There is a count charging the crime of larceny as a second offence, and the last part of the finding I think -must be taken as applying to that count only, for I take it a conviction for a second offence can not be had upon a count for a single first offence.

The three counts for simple larceny, as well as the one for burglary and larceny therefore appear to be entirely undisposed of and untouched by the verdict.

II. The court below charged the jury that the defendant could be convicted as an accessory, before the trial and conviction of the principal offenders. In this the court clearly erred. By the common law, no man could be convicted as an accessory until after the conviction of the principal felon. ITe could not be tried alone before the principal, for non constat but the person charged as principal might be acquitted. They might be tried together, but in that case a conviction of the accessory and an acquittal of the principal would be irregular and void, as presenting the absurdity of an accessory without a principal. (4 Bl. Com. 40, 323.)

The court below admitted that such substantially was the rule of the ancient common law, but held it was not the law at present. The only change in the law in this particular that I am aware of, is by our statute (2 R. S. 727, § 49), which declares that “ an accessory before or after the fact, may be indicted, tried, convicted and punished, notwithstanding the principal felon may have been pardoned or otherwise discharged after his conviction.” This statute is substantially the same as the English statute of Anne, both of which were passed to meet a rule of the old common law by which the accessory could not be arraigned until the principal had been attainted, which might be avoided by pardon, clergy, or his death after conviction and before attainder. But the statute does not allow of a conviction of the accessory before that of the principal, any more than the common law. It only allows it iwcer tain cases after the conviction of the principal felon

The law has been farther changed in. England by the statute 7th Geo. IV, ch. 64, by which an accessory may there be now-tried before the principal. (Rosc. Cr. Ev. 217.) But we have no such statute.

It is claimed by the counsel for the defendant in error that the conviction of Ackley, one of the principals, having been legally established, the part of the charge complained of was the expression of a mere abstract opinion, and that as it could not have influenced the verdict, it can not here be alleged as error. It was a question for the jury to determine, whether Ackley had or had not been convicted. They were to judge of that fact by the evidence before them. And although I incline to think the paper evidence, in connection with the testimony of the former county clerk, was sufficient to establish the conviction of a man by the name of William Ackley, yet the jury were to be satisfied that he was the identical man or one of the men to whom the testimony in reference to the commission of the principal offence related. We may suppose all this was satisfactorily done,- still the jury were by the charge left at liberty to leave the question of Ackjey’s conviction out of view entirely. It seems to me this will not do in a case of felony

III. The court charged the jury that the defendant might be convicted in Ontario county although whatever he did in connection with the offence was in the county of Monroe. In this I think there was also an error. It was at one time doubted whether at common law an accessory in one county to a felony committed in another could be indicted in either. (Hawk. P C. book 2, ch. 25, § 54; Keil. 67; Dyer, 38.)

Our statute (2 R. S. 727, § 45) provides that the accessory may be indicted and tried in the county where the offence of the accessory was committed, notwithstanding the principal offence was committed in another county. But there is no statute or rule of law allowing the accessory to be indicted and tried in the county where the principal offence was committed, unless his offence as accessory was committed there.

As the conviction and judgment must be reversed for the reasons above mentioned, it is unnecessary to consider the other points raised upon the argument. Conviction and judgment reversed, and new trial ordered in the court below.


author: The court

text:
    Oneida Oyer and Terminer,
    June, 1851.
    Before W. F. Allen, Justice of the Supreme Court, and the Justices of the Sessions.
    The People vs. James J. Orcutt.
    it is sufficient, in an indictment for arson in the 1st degree, to describe a building, which has been usually occupied by persons lodging therein at night, as a “ dwelling house,” although it may not be a dwelling house in the ordinary and popular acceptation of that term. (2 R. S. 657, $ 9.)
    A person is presumed to intend the ordinary consequences of his acts; and it devolves upon a person charged with crime to rebut this presumption, by evidence of a different intent.
    A design to produce death is not necessary to constitute the offence of arson in the first degree, either at common law or under the statute.
    It is immaterial whether the person charged with this offence has knowledge ■ that the building burned has usually or at any time been occupied by persons lodging therein. (2 Russ, on Crimes, 552 n. (/), Phil. Ed. of 1S45).
    Any building is a “ dwelling house,” within the act defining arson in the first degree, which is in whole or in part usually occupied by persons lodging therein at night, although other parts, or the greater part, may be occupied for an entirely different purpose.
    Indictment for arson charging the defendant with burning in the night time a dwelling house in the city of Utica, in which there were at the time human beings. The indictment also contained counts describing the building as a barn, immediately connected with, joined to and a part of a dwelling house. The fire occurred on the night of the 8th of April, 1851, and wus kindled by the prisoner, in a stable or barn in which were several horses. This stable or barn was connected with and framed into another barn and stable, known as the livery barns. The roofs and frames were united, and the lofts were open from one to the other, and they were occupied by one man and as one barn and stable, and both were entirely destroyed, with eleven horses and a large amount of livery property. The barns and stables were at right angles with each other, the yard being in the angle. At the end of the part known as the livery barn a room was finished off, which was used as an office and a place for buffalo robes, whips, &c., and which was occupied as a sleeping room by the drivers and men employed about the stable. For several years, this part of the building had been constantly occupied as a sleeping room by one or more persons, and at the time of the fire three or more persons habitually slept there, having no other lodging place, and keeping their wardrobe there and were then actually sleeping there. Evidence was given tending to show that the prisoner was-guilty of setting the fire. At the close of the evidence for the prosecution,

      F. Kernan, for the prisoner,
    insisted that there was a variance between the proof and the indictment, in the description of the building destroyed: that the description of the building in the indictment was untrue; that it was neither a dwelling house nor a barn connected with, joined to and making a part of a dwelling house; that it was a barn, and occupied as such, and should have been so described, with proper averments, to bring it within the class of buildings which the statute declares shall be deemed dwelling houses, in defining the offence of arson in the first degree.

      S. B. Garvin (district attorney), for the people.
    The court decided that there was no variance. That if the building had been usually occupied by persons lodging therein at night, it was well described as a dwelling house within the statute (2 R. S. 657, §9); that it was sufficient to name the edifice by the statutory description of a “ dwelling house,” leaving it for the proof to detail the particulars which entitle it to be thus described, under the statute regulating the punishment of arson.

      The cause was summed up by

      J. A. Spencer, for the prisoner, and

      The District Attorney, for the people.
    The counsel for the prisoner urged, among other things, 1st. That the edifice destroyed was not a dwelling house, within the statute; that the statute was designed to modify the common law and exclude from the first degree of arson the burning of all rough buildings, as barns, sheds, &c., unless actually attached to a building known as a dwelling house in the popular sense. 2d. That the evidence of a malicious intent was warning, citing and commenting upon People v. Cotteral (18 Johns. Rep. 115). 3d. That a design to produce death was necessary to authorize a conviction of arson in the first degree; that if there was no such design, the offence was mitigated to the second degree.
   The court

charged the jury, 1st. That if from the evidence they were satisfied that the prisoner in setting the fire did not intend to burn the building, but intended to accomplish some other object, the case would be within the People v. Cotteral, in which the prisoners having been convicted of arson, the judgment was arrested upon the ground that it was proved, beyond all reasonable doubt, that the prisoners merely designed to effect their escape from jail, and did not intend to bum the jail. That the prisoner must be presumed to have intended the ordinary consequences of his- acts, and that it devolved upon him to show the absence of an intent to burn the building.

2d. That to authorize a conviction for the offence charged, it was not necessary to establish a design to produce death. That such design did not enter into the offence of arson in the first degree, either at common law or under the statute. That it. was immaterial whether the prisoner had knowledge that the building was occupied by human beings lodging therein, either habitually or at the time. It was sufficient if they believed upon the evidence, that the building was in fact thus occupied, and that the prisoner willfully burned it in the night time, there being some human being at the time therein, and

3d. That the jury would inquire, 1st. Whether the barn or stable in which the fire was kindled, and that in which was the office and sleeping room, was one and the same building,- and 2d. If they did not constitute one building and only one, but were two separate and distinct buildings, whether the former was joined to, immediately connected with and a part of the latter, and if either of these propositions should be found by them in the affirmative, they would inquire, 3dly, whether the building had been usually occupied by persons lodging therein at night, and whether at the time of the commission of the offence there was some human being therein; and that if they were satisfied that the building had been and was thus occupied, the willful setting fire to and burning it in the night time, constituted the offence of arson in the first degree (2 R. S. 657, § 9, 10). That the statute had defined a dwelling house, and that within the statute, whether a building was a dwelling house or not, depended upon the fact whether it was usually occupied by persons lodging therein at night, and not upon the popular understanding of that term; that it was not necessary that the whole building should be thus occupied — if a paid was occupied as a sleeping room, it was sufficient, although other parts might be used for other and entirely different purposes.

The jury found the prisoner guilty of arson in the first degree, and he was sentenced, to be executed. The sentence was commuted by the governor to imprisonment in the state prison for life, on account of the youth of the prisoner, and some circumstances which made it a. case proper for the exercise of this power by the executive. The conviction upon the facts, and the decision and charge of the court, were expressly approved by the governor.


author: Edmonds, Presiding Justice,

text:
    New York Oyer and Terminer.
    September, 1851.
    Before Ed-monds, Justice of the Supreme Court, and two of the Aider-men.
    The People vs. Henry Carnal.
    On a motion for a new trial, on the ground of improper conduct of the jury, the affidavits of the jurors are not admissible to prove such improper conduct.
    A communication made to a jury while deliberating, by a party in whose favor the verdict is rendered will avoid the verdict; but a verdict will not be set aside because of such communication, where it is made by the losing party or by a stranger to the controversy.
    Where, on a trial for murder, while the jury were consulting together upon their verdict, one of them sent the officer in charge of them to the court, to request that the statute or some book containing the law of manslaughter should be sent to them, and the officer returned and informed the jury that u Judge Edmonds said they had nothing to do with manslaughter,” and they found the prisoner guilty of murder, on motion before the court of Oyer and Terminer for a new trial, on the ground of such communication to the jury, a new trial was denied.
    This was a motion for a new trial. The prisoner had been convicted in March, 1851, of the murder of Charles M. Rousseau and sentenced to be executed on the 2d day of May, 1851. Before that time the governor respited his execution, to enable him to avail himself of a bill of exceptions taken on the trial. An application was then made to the governor for a pardon or commutation of sentence, on the ground that after the jury retired to deliberate on their verdict, the presiding judge had improperly given them private instructions in the absence of the prisoner or his counsel. The governor refused the application, but again respited the execution until the 19th of September, to give the prisoner an opportunity of moving the court for a new trial upon the affidavits which were laid before him, and this motion was made accordingly.
    On the part of the prisoner, affidavits were read from eleven of the jurors, setting forth that the jury, after they had retired, requested the officer having them in charge to ask the court to furnish them with the law of manslaughter, or instruct them as to what that law really was, and that the officer in a few minutes returned and stated that the jury as matter of law had nothing whatever to do with manslaughter, that the indictment was for murder only, and the case was not one of manslaughter, and that Judge Edmonds had directed the officer so to state to the jury, and one of the jurors was made to swear that but for that communication he could not have conscientiously brought in a verdict of murder.
    On the part of the prosecution, the affidavits of ten of the jurors were read, stating that the jurors were at once unanimous in finding the prisoner guilty, but that one of them, from his repugnance to taking life, desired to confine the verdict to manslaughter, that thereupon one of the jurors directed the officer to request the court to send them the statute or some book containing the law of manslaughter — that the officer gave for answer: Judge Edmonds says you have nothing to do with manslaughter — and that this communication had no influence with the jury, because the court had clearly, in their charge, said the same thing. Some of the jurors stated further, that when called upon to make their affidavits in behalf of the prisoner, they told the counsel who called upon them, what occurred as they now related it, and were told by him that it was matter of form as to the precise words, that he desired the affidavit to show the fact of the communication from the court to the jury; that the judge had no right to communicate with the jury except in open court, and that the object was to procure a commutation of the punishment to imprisonment for life, and not to apply for a new trial. It was not alleged that the court had authorized the officer to make any communication to the jury.

      Clinton and H. F. Clark for the prisoner,
    contended that the irregularity of the officer in making the communication to the jury without the order of the court, rendered the verdict entirely void.

      Blunt (district attorney),
    objected, 1. That the affidavits of the jurors could not be read. 2. That the court after sentence pronounced, had no power to grant a new trial. 3. That the irregularity, though it might subject the officer to punishment., in no manner affected the verdict, and 4. That the granting a new trial is a matter in the discretion of the court, which ought not to be granted in this case, because no injury had been done to the prisoner, inasmuch as the language used by the officer was a mere repetition of that which had already been used by the court in its charge to the jury, and because the witnesses, by whom alone the prisoner’s guilt could be established, had left the state and' gone to parts unknown in the interior of South America, never to return.
   Edmonds, Presiding Justice,

delivered the opinion of the court

The facts on which the new trial is moved for, as established by the affidavits are simply these: that while the jury were consulting together of their verdict, one of them called the officer having them in charge and said to him, ask the court to send the jury the statute or some book containing the law of manslaughter,” that the officer after a short interval returned and said, “ Judge Edmonds said they had nothing to do with manslaughter.”

The officer was not instructed by the court or any member of it to make any communication to the jury, but it is probable (though on that subject there is no evidence), that w^hen the officer made the application for the book, the judge refused it in the language used, and the officer instead of refusing to speak to the jury — as he ought to have done, having no leave from the court; or instead of saying to the jury “ you can not have the book,” — conveyed the refusal to the jury in the words used by the judge in giving it to him.

For the communication thus improperly made by the officer to the jury without authority from the court, a new trial is moved for, and the question is whether the irregularity is one ■which renders the verdict void.

If such is the rule of law, it must be rigidly enforced, however untoward the event which works such a'r&sult. Of the prisoner’s guilt of the crime of murder, not a doubt can remain on any rational mind, and there is every reason also to believe, that that crime was perpetrated while he was attempting another — that of robbing his benefactors. And so, too, it is equally manifest that if a new trial is now granted, the prisoner must escape the punishment which the law denounces upon the crime he has committed, for the witnesses by whom alone the facts can be proved have left the country and returned to the interior of South America, whence their testimony can not be procured so as to be used on the trial. And it is under such circumstances that the court is called upon to recognize the principle, that an unauthorized communication to the jury by the constable having them in charge, renders their verdict void.

If this be so, then is the due administration of justice more under the control of the ignorance or corruption of the constables who are in attendance at the court, than has been hitherto supposed.

I dismiss from view entirely the consideration how far the communication influenced the jury; and for two reasons.

In the first place, while one of the affidavits on the part of the prisoner conveys the idea that but for that communication, one of the jurors “ could never have reconciled it to his conscience to concur ” in a finding of murder, the affidavit of the same juror and those of nine of his colleagues produced on the part of the prosecution clearly establish that the jury were already unanimous in their opinion that the prisoner was guilty of murder; that the question of manslaughter was agitated among them merely from “ a repugnancy ” on the part of the juror “ to taking human life;” that all of them had previously very distinctly understood from the charge of the court, that there was no question of manslaughter in the case, and that their verdict was in no respect affected by the communication.

In the second place, while the affidavits were admissible to prove an impropriety on the part of the constable, they were in no respect admissible to prove any on the part of the.jury; and it surely would be an impropriety of a high character, for a jury to take the law of a case from the constable at their door

I therefore examine the question in its naked aspect, whether, as matter of law, such a communication does necessarily render the verdict void.

It is undoubtedly true that any communication to a jury while deliberating, made by a party in whose favor their verdict is rendered, will avoid their verdict, and that, no matter whether it had any effect upon their minds or not: for the best of reasons, that it is thus alone the purity of the trial by jury can be preserved. But we were shown no case, though we asked for one, where such an effect has ever been given to a communication made by the losing party or by a stranger to the controversy, nor can I, by my own researches, find any such. And, as I suppose, for an equally good reason: that it would be giving to intermeddlers a power and control over the administration of justice that is denied even to the courts.

It is not worth while to spread out here the details of the examination which I have made. I have given the subject the careful consideration its vital interest to the prisoner demands, and the conclusion at which I have arrived is quite satisfactory to my own mind, both on principle and authority.

A reference to two or three cases will be sufficient. In the case of Taylor v. Everett (2 How. Pr. R. 23), our late supreme court held that a communication made by the constable to a juror, which the juror swore induced him to agree to the verdict, was not enough to set it aside, though the conduct of the constable was deserving of severe animadversion. In Harrison v. Rowan (4 Wash. C. C. R. 32), the jury after they- went out took refreshments without leave of the court. The court held it was misbehavior to do so, but the verdict would not be affected, unless they were furnished by the party in whose favor they found. So, where a juror had left his seat without knowledge of the court or either party. (Ex parte Hill, 3 Cow. R. 355.) So, too, when the jury had retired to deliberate on their verdict. (1 Cowen, 221.) In the case of The King v. Wolfe (1 Ch. R. 401), where the subject was very fully examined by the English judges, and in The People v. Douglass (4 Cow. 33), in our own state, it was held that the mere separation af the jury, without any further abuse, would not affect the verdict.

And in Everett v. Youells (4 Barn. & M. 681), where the servant of one of the jurors privately conveyed some food to him while they were deliberating, the court held that it might be ground for imposing a fine, but it was not a reason for setting aside the verdict, and Parke, J., with great propriety says: “ The officer who attended the jury may be punishable, but it would be a fearful thing if verdicts could be set aside on such grounds as this.”

It would be so indeed, and this case would be a strong exemplification of the truth of the remark. Here is no complaint that the prisoner was not rightfully convicted or that the verdict was not fully warranted by the evidence, no complaint that the law was improperly laid down by the court. The jury were unanimous in a verdict, which the court has already had occasion to express its approval of. The witnesses by whom alone the prisoner’s guilt can be established, are beyond the jurisdiction of the court. It was a frightful crime which the prisoner committed, and it is now claimed that he shall escape the con sequences, because the constable in charge of the jury was guilty of an impropriety! This can not be. Both principle and authority forbid it.

I purposely abstain from examining the other questions raised on the argument, because having on the merits arrived at a conclusion adverse to the motion, it must be denied, whatever our views upon those- other questions.


author: Edmonds, J. —

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

      Edmonds, Mitchell and King, Justices.
    Henry Carnal plaintiff in error vs. The People &c. defendants in error.
    A motion to set aside a stay of proceedings and to quash a writ of error, in a capital case, may he made by the district attorney; and the prisoner’s counsel can not avail himself of the objection, that such motion should have been made by the attorney general.
    A justice of the supreme court has power to allow a writ of error, and to make an order staying proceedings, after conviction, in a capital case.
    The mode of reviewing a decision of the Oyer and Terminer, as it existed previous to the adoption of the Revised Statutes, compared with the present practice.
    The prisoner had been tried and convicted of the murder ot Charles M. Rousseau. A writ of error having been allowed by Justice Harris with a stay of proceedings, a motion was made before the supreme court sitting- in the first judicial district, where the writ was returnable, to quash the writ of error and to vacate the stay of proceedings.
    The grounds of the application are fully set forth in the ■ opinion of the court.

      Jf. Bowditch Blunt (district attorney), for the people.
    I. The motion is divisible into two branches, one going to quash the entire proceeding, the other simply to vacate the stay of proceedings. The motion to quash presents two questions, one purely legal, resting upon the form and character of the writ: the other, a mixed question of law and fact. Upon the first question, it will be necessary to examine the history-of Avrits of- error at common law, and the changes, if anjq effected by the statute. What then was the province, power and proceedings of and upon writs of error at common law. First. Its province was to remove the record for review into the court of King’s Bench, and from the King’s Bench to the House of Lords. Second. Its power was to reverse the judgment in cases
      not capital, for notorious mistake in the judgment, or other parts of the record, and in capital cases to reverse attainders. Third. In cases of misdemeanors, writs of error were not allowed, of course, but on sufficient probable cause shown to the attorney general or public prosecutor, and then they were grantable of common right and ex debito justitice. Fourth. In capital cases, writs of error were only allowed ex gratia, and not without express warrant under the king’s sign manual, or with the consent of the attorney general. (1 Chiity, Cr. Law, p. 749.) 'Fifth. In no case at common law did the writ of error operate as a stay of proceedings. (Lanett v. The People, 7 Cowen, 339; Rex v. Wilkes, 4 Burr Rep. 2527.)

    II. Assuming that the judge had no power to grant a stay of proceedings, and the present writ of error containing such express direction therein, what is the effect of such provision1? Does it avoid the whole writ, or is the direction being a nullity mere surplusage? I conceive the writ itself must be set aside. If the order, was separate from the writ, forming no part thereof, the court might discriminate, but as an essential part of the writ, in the present case, if improperly or illegally allowed, the whole writ must fall. The court can not separate the writ into parts retaining one and rejecting the other — the excess of the authority renders the whole void. The writ is evidently a writ under the 15th and 16th sections, and if inapplicable to the case in hand must fall.
    III. The allowance of the writ was obtained by the suppression of material facts, and being a writ ex gratia, this court upon a knowledge of such facts, has the power to revoke this exercise of grace.

    IV. The previous application for a writ of error to a judge in this district, and the subsequent proceedings of the counsel for the convict as connected with said application, form an additional reason for vacating the present writ of error. The effect of tolerating or sustaining a proceeding of this description, will be, to encourage tardiness; to reward willful delay; and to uphold by subtle refinements and technical abstractions, the practice of destroying just convictions on the merits; and thus subvert the ends of public justice.
    V. Finally, the sustaining of this writ of error, is calculated to pollute the fountains of justice, to destroy the public confidence in our judicial tribunals, and to render our laws, instead of being a terror to evil doers, a byeword and a mockery.

      Fiat justitia, mat cmlum.

      H. L. Clinton, for the prisoner.
   By the Court,

Edmonds, J. —

The prisoner was convicted of murder at the Oyer and Terminer in New York, in-March last, and was sentenced to be executed, in May. Before the day appointed for his execution, his counsel prepared a bill of exceptions, obtained a reprieve of execution until July, and applied to the judge who presided at the trial for the allowance of a writ of error. Before that application was passed upon, the counsel for the prisoner withdrew it, and gave notice of an application to set aside the conviction on the ground of irregularity, and obtained from the governor a further reprieve, in order to make that motion. On the day following the decision of that motion adverse to the prisoner, his counsel obtained from a judge, out of the district, an allowance of a writ of ez-ror on the bill of exceptions, and an order staying all proceedings on the execution until the decision on the writ of error.

In regard to the objection made by the prisoner’s counsel against the district attorney’s appearing in the case and making this motion, it is enough to say, that under the statute (2 R. S. 741, § 21), the district attoimey has, at least, concurrent power with the attorney general; and it will be time enough to determine which has paramount authority when a conflict shall' arise between them. In the mean time, it is not competent for the prisoner to raise the question. It is sufficient for him that the motion against him is made by one having authority to make it. The main motion is to quash the writ of error, on two grounds. First, because of concealment of material facts from the officer who allowed the writ; and second, because that officer bad no power to allow a writ of error, incorporating into it an order to stay proceedings. In respect to the first point, we took occasion to say, on the argument, that the explanation of the prisoner’s counsel was entirely satisfactory. And all that is left us to consider is, whether the judge had power to stay proceedings on the judgment after a sentence had been pronounced. Upon this question, which is one of construction of a. statute, we have no aid from adjudications. We have been referred to only one case (Freeman’s) where such an order has been granted, and in that case the right to grant it seems not to have been a subject of discussion or adjudication.

I confess my first impression on this subject was adverse to the existence of the power. The section of the statute so often referred to (2 11. S. 658, § 15) is very explicit in its terms; “No judge, court or officer, other than the governor, shall have authority to reprieve or suspend the execution of any convict sentenced to the punishment of death.” “ The revisers, in their report recommending the section, say that “ the preceding or some other provisions concerning the suspension of executions seem absolutely necessary. Those stated, viz., lunacy and pregnancy, are the only cases where the interference of any other power than that of the governor can be necessary. Without expressing an opinion whether the judge or court possess the power of suspending executions, it is yet deemed an unnecessary power, as the court may suspend judgment in case of doubt, and is so obviously liable to abuse, and conflicts with the powers and duties of the executive, that the exercise should be expressly prohibited.” It will be observed that it is “reprieves and suspensions” that are alone forbidden to all others than the governor, and i.t becomes material to inquire what is meant by those words in the statute. We can gather that meaning from an unmistakeable source. The constitution in force, when the revised statutes were enacted, in art. Ill, § 5, says he “ shall have power to grant reprieves and pardons-after conviction for all offences, except treason and cases of impeachment. Upon convictions of treason, he shall have power to suspend the execution,” See., until the legislature can he consulted.

The revised statute (vol. 1, 165, §3), also enacts, in regard to his granting pardons for all offences and suspending execution in cases of treason; thus showing plainly what reprieve or suspension it was that was to be prohibited to other officers, lest it might “ conflict with the powers and duties of the executive.” The statute has given a further construction to the terms under consideration. If a convict, under sentence of death, become insane, the sheriff, after certain preliminaries, may “ suspend the execution” until the governor shall issue his warrant directing the execution. And so, in case of pregnancy, he may in like manner suspend the execution. The term “ reprieve” as applied to convicts, has a definite meaning. It postpones the time of execution to a definite day, while “ suspension” is for an indefinite period. It can not be claimed, nor has it been, that the act complained of by the district attorney, in this case, was a reprieve; it was a suspension, if at all, within the statute under consideration. The object of the statute was to prevent a conflict between the executive and other departments of the government.

The power of the governor to grant an absolute pardon needed no protection from the statute, for it was confessedly vested in him, and in him alone. But his power to reprieve, that is, to defer the execution, until a definite time, did require such protection, for it was claimed, and had then recently been exercised by other officers. In Miller’s case, in 1828, reported in 9 Cowen, 730, a court of Oyer and Terminer, after sentence of death had been pronounced, and the time for execution had been fixed, had interfered, by postponing the execution to a day certain ani beyond that originally appointed, and had thus, as it was claimed by the governor, “ granted a reprieve.” The learned judge, whose conduct was arraigned on that occasion, in a letter which has, I believe, received the almost universal approbation of the jurists of our state, claimed that the power existed in the judges of granting reprieves to such time as might be necessary to give room to apply to the executive for a pardon; that it belonged of common right to every tribunal which was invested with authority to award execution; and was no more an executive than a judicial power. It was to put an end to this claim and exercise of power that the statute in question was recommended and passed. Thus far the origin of. the statute has been regarded only as it affected reprieves. There was one case, and only one, in which the governor was authorized by the constitution and the laws to suspend a sentence for an indefinite period, and that was in cases of treason, where the power to pardon was expressly prohibited to him.

Now, as the power claimed by the judges was rested upon grounds broad enough to reach suspensions also as well as reprieves, and as the case of treason was one of those put forth by the presiding judge, in that instance, as one where the power might be exercised, the revisers (and the legislature' following their recommendation) deemed it proper to extend its prohibition beyond the case which had actually occurred to one which might occur. It was in substance, therefore, enacted that, as the goverdor had power in all cases except treason and impeachment, to reprieve for a definite period, the power should not be exercised by any other officer, and that as he had power in cases of treason to suspend for an indefinite period, that power in like manner should not be exercised by any other one. And thus the object of the statute was attained in guarding against conflicts between the executive and judicial departments. I have already remarked that the act complained of in the case before us was not a “ reprieve,” within the sense of that word as used in the constitution and the statute; and I now add, it is equally manifest that it was not a “ suspension” within that sense.

It was, however, claimed on the argument, that even if the strict letter of the statute would bear such construction, it wa$ evidently the intention of the legislature to prohibit the exercise of any power over, or interference with the sentence, by any one .other than the governor, and that the act complained of was clearly within the spirit of the statute; and we harm not overlooked that view, for it struck us with much force on the argument; the revisers, in their report, touching this enactment, almost, if not quite, say so; and to ascertain how that is, it is necessary for us to examine somewhat at large the system which they recommended and which was adopted by the legislature. Prior to the revised statutes, there was no bill of exceptions in criminal case and writ of error thereon, for the review of convictions in the Oyer and Terminer; the review was attained in this manner: the court suspended passing sentence, and certified the question, which was in doubt, to the supreme court, who considered and passed upon it, and advised the court below either to grant a new trial, or proceed to pass sentence, and sometimes when the convict was before them, they passed the sentence themselves. Whether the trial should be reviewed was at the option of the court before which it was had, and the jury had not the right as in civil cases to take exceptions, and carry up the record for review.

In case the judge consented to a review, the necessary time for that purpose was given, either by the court suspending its judgment, or, after judgment pronounced, by suspending the execution. The legislature, in the revised statutes, altered this practice, and gave to the prisoner the right to interpose his exceptions, and a right to a review of his case, and they adopted various provisions to carry out their intentions. They gave the party on trial an absolute right to a bill of exceptions. In certain cases the district attorney might sue out a certiorari, and so bring the exceptions to the attention of this court, and, on the other hand, the defendant might sue out his writ of error and so bring up the case for review. In all cases not capital, the writ of error was one of right, and the judge was bound to allow it. In capital cases, it was in the discretion of the judge who tried the'cause, or any other judge of this court, to allow or refuse the writ. And then, in order to provide the time necessary for a review of the case in the higher court, it was provided, in all cases, that the writ of error should stay or delay the execution of the judgment, or of the sentence thereon, when there was an express direction therein that it should operate as a stay.

Thus a harmonious system was adopted, by which the prisoner’s right to have his case reviewed was secured to him, delays, on his part, were provided against, and ample time for such review was provided for. The act of the judge complained of in this case is, that while he thought, in the exercise of the discretion vested in him, that the case was a proper one for review, he provided the time necessary for that purpose, by ordering the execution of the sentence to be stayed until the decision of this court on such review. The section authorizing a judge to order a stay of proceedings, in terms applies to all criminal cases where a writ of error is allowed, and the prior section prohibiting the interference of any officer except the governor in the execution of a sentence, seems to apply to all cases of a reprieve or suspension in a capital case. If the two provisions are in conflict with each other, then the one which I have last named must yield to the other, because prior in its position in the statute, upon the well known rule that the last expression of the legislature is supposed to best declare its intention. But if they can be so construed as to allow both to operate, and they do not necessarily conflict, such construction must be given to them as will allow full force to both. The two sections may, it is true, be made to conflict by a certain construction, but they do not necessarily conflict. On the other hand they may be so construed that both may exist harmoniously together.

Thus, if the section which forbids the interference of a judge is confined to cases where the review or suspension is for purposes other than a review of the case in a higher court, and the section which allows him to grant a stay of proceedings is confined solely to cases where such review is sought, they can exist in unison with each other, and in entire harmony with the whole system. There will then be left with the judges that which is conceded to them in all other cases, civil and criminal, viz. the power to stay proceedings until a review can be had in a higher tribunal; and there will be left to the governor his full power to pardon, suspend or reprieve execution. This construction is commended to our favorable regard, not merely by the well settled rules of construction as to enactments apparently conflicting, but by the difficulty we encounter in finding any reason why the statute should exempt capital cases from a rule which applies in all other imaginable cases, civil or criminal, important or inconsiderable. But there are still other considerations. In these cases the court before whom the trial is had may suspend all proceedings after conviction, provided they do so before they pronounce sentence, and for the purpose of having the case reviewed. What good reason can be found for denying the exercise of the power for the same purpose, after sentence shall be pronounced?

Again, if the judge who presides at the trial should refuse to allow the writ of error, his decision is not final, but another judge may allow it. Of what use would that be in a capital case, if the proceedings could not be stayed? The allowance of the writ, which would be, in effect, a certificate by a judge of this court, that there was, probably, error in the conviction, would, in such an event, be the crudest mockery, and the writ be rendered entirely nugatory. This view may be carried still further, by reflecting a moment on the state of things which existed when these statutes were enacted. It was a circuit judge who presided in the Oyer arrd Terminer. He might think there was no error or doubt in the case, and so refuse either to suspend the judgment, or allow a writ of error. Yet, the chancellor or a judge of the supreme court might think there was error, or at least doubt, and allow the writ of error.

Yet, according to the construction contended for, he (the superior officer) would be obliged to leave the prisoner for execution with that doubt or error hanging around the case, because the inferior officer had said so. There is another consideration to be regarded. Although a writ of error did not, from its nature, operate as a stay of proceedings, yet it had so often and so generally been clothed with that attribute by the English statutes, passed before our revolution, and incorporated into our law, that at the time of revising our statutes, it was generally supposed it would operate per se. The revisers so understood it, and hence the enactment is, not that a judge may grant a stay, but that no writ of error shall operate as such unless it contains in it a direction to that effect. So that but for that restriction, when the statute gave a writ of error in criminal cases, it might, in the then prevailing opinion, be of itself a stay; and the repiieve or suspension of execution that might thus be worked out, would be, not by the direct interference of “ any court, judge or other officer,” but by the very nature and office of the high writ.

Again, the statute has made another very important distinction between writs of error in capital and in other cases. In all cases not capital, the writ may be allowed by any county judg-e, recorder, and supreme court commissioner, and without notice to the public prosecutor, but in capital cases only by the chancellor, judge of the supreme court or circuit judge, the highest of our judicial officers, and then only after notice to the attorney general or district attorney. Why this distinction, if there was to be no stay of execution? Was the allowance of the writ of error confined to those officers who are alone trusted by the statute with the power to stay proceedings? And why, above all, this care and caution about a writ of error, which, when unaccompanied by a stay of proceedings, would become so illusive? In fine, the granting of pardons, reprieves, and suspending executions in criminal cases, provided for in one of these sections, is now, under our existing constitution and laws purely an executive power, confided to the governor alone; and the staying proceedings upon a judgment in either a civil or criminal case, for the purpose of enabling a party to enjoy fully the benefit of the reprieve which is secured to him, is purely a judicial power, which has always been exercised by the courts, and can not be abandoned without subjecting to great peril the important interests confided to and passed upon in them. We are, therefore, of opinion that this motion must' be denied.