author: S. B. Strong, J.

text:
    Supreme Court. Kings General Term,
    December, 1858.

      S. B. Strong, Emott and Brown, Justices.
    The People v. The Long Island Railroad Company. The People v. The Brooklyn and Jamaica Railroad Company.
    That a fair and impartial trial, by any means within the reach of the law, cannot be had in the county in which the venue was laid, is a sufficient reason for changing the place of trial in a criminal case.
    In deciding upon such an application, the court should be governed by the facts shown, and not by the mere impressions or conclusions of parties and witnesses..
    It is not indispensable to a change of venue in a criminal case, that there should have been an ineffectual attempt to obtain a jury in the county where the venue was laid.
    In these cases, indictments had been found against the defendants, in the county of Kings, for a public nuisance, and the indictments having been removed into the Supreme Court, the defendants moved, on affidavits, for a change of the place of trial. The facts and circumstances sufficiently appear in the opinion of the court.

      John Dikeman and J. Greenwood, for the Long Island Railroad Company.

      S. E. Lyon, for the Brooklyn and Jamaica Railroad Company.

      J. M. Van Cott, for the People.
   By the Court,

S. B. Strong, J.

The defendants have moved that the place of trial in these actions should be changed, on the ground that a fair and impartial trial cannot be had in the county of Kings, where the indictments were found, and the facts upon which they are-based occurred.

There are reasons for which I would gladly have abstained from expressing an opinion upon the motion, but they are not such as to legally disqualify or exonerate me from participating in the decision, and as -my views differ to some extent from those expressed -by one of my brethren, I conceive that I am bound to state them.

It is, of course, desirable that trials in criminal cases should be had where the offences are alleged to have been perpetrated. Witnesses for the prosecution often attend reluctantly, and generally without compensation, and if they should be called úpon to travel far from-their homes, they would be subjected to great hardship, or would abstain from attending, to the great obstruction - of .public justice. I do not, however, urge that the vicinage, as it is called, is the best adapted for a fair and impartial trial. There is often some personal feeling or local prejudice, which sadly interferes with the due and impartial administration of justice, and sometimes induces strange verdicts, or, what is becoming a serious evil, final disagreements among the jurors. But for the trouble, delay and expense caused by trials at distant or remote places, it would be well that they should take place before jurors to whom the parties, their interests and their feelings, are unknown. It might sometimes subserve the ends of justice that the parties and their witnesses are personally known to the jurors, but the advantage is more than balanced by the undue influence of personal or local considerations, which is often imperceptible to him whom it controls.

A party who moves to change the place of trial from where the law primarily establishes it, must fail, unless he satisfies the court that the ends of justice require it, or at all events will be promoted by it. That a fair and impartial trial by any means within the reach of the law, cannot be held in the county where the venue is laid, is undoubtedly a sufficient reason for the change. The people—all men, whatever may be their character or standing, have, when litigating, a right to a trial by an unprejudiced jury. Many unbiased and competent jurors can be found iif any county of this State, in any conceivable case, but the questions in these applications is, whether such can be procured by the method provided by law ? Ordinarily there are no means of selection. The requisite number is drawn from the county box, and the persons named on the ballots must be summoned, whether competent and unbiased, or otherwise. Even when select jurors are ordered, the county clerk names forty-eight, and neither party has any voice in the matter, except to strike out twelve of the number. Where there is a widely extended bias, its application to individuals cannot be well known until they are interrogated, and therefore these methods of obtaining impartial jurors are very imperfect.

Still the court should not lightly adopt or act upon the opinion that a fair and impartial trial cannot be had in the county where the events which gave rise to the complaint are alleged to have happened. Facts, and not the mere impressions and conclusions of the parties or their witnesses, should be considered, and should control. Parties generally, and their friends frequently, imbibe strong opinions from inconsiderable causes, and it is unsafe to place much reliance upon them. But there cannot well be any serious misapprehension as to the existence of facts, especially where they are of a public nature. The principal question is as to the inferences to be drawn from them.

It is said in Messinger v. Holmes (12 Wend., 209), that the place of trial should not be changed by reason of popular excitement or prejudice, until after an ineffectual trial in the county where the venue had been originally laid. But in a subsequent case (The People v. Webb, 1 Hill, 179), it was de-' cided that the venue might be changed in a criminal case, where the evidence of public excitement against the applicant was strong, although there had been no actual experiment made by way of trying the cause, or even impanneling a jury, where it had been originally laid. The learned judge who gave the opinion of the court in that case, remarked, and I think correctly: “To make such an experiment essential, would seem to be quite dangerous. It is the very thing which the law seeks to avoid, where it is seen that the party may, and probably will, be drawn into a trial by a jury who, under an influence of which they themselves may be hardly conscious—an influence which, perhaps, no human sagacity can detect—may pronounce a verdict against him, and conclude his rights forever.” True, in a case where a verdict is palpably against the weight of evidence, a new trial may now be granted, but the evil of even an unjust conviction cannot be easily cured.

The character of an innocent man may suffer, and he may be subjected to great trouble and expense. The venue was changed in the case of The People v. Webb, in consequence of an excitement against the prosecutor, created by publications from the office of the defendant. The case was by no means as strong as this is represented to be, although there is a considerable resemblance in the minor features. There was another decision of the late Supreme Court which was not reported, by which the venue in several actions, which I (as a member of the bar) had instituted against the Long Island Railroad Company, was changed from the county of Suffolk, by reason of alleged prejudices against the company, to the county of Richmond, although there had been no attempt to try either of them. The objection that there had been no trial was strenuously urged in those cases, but it was unhesitatingly overruled.

In a case where there had been an actual experiment and a failure to obtain a just verdict, clearly traceable to undue excitement against the unsuccessful party, that would go far to show that a trial should be had elsewhere. Even a failure to obtain any verdict, is not, however, conclusive evidence, when attributable to popular excitement, that it prevails to such an extent as to require a ehange of the place of trial, as was decided in the case of The People v. Bodine (7 Hill, 181). In that case, however, there was an actual necessity for the change, as subsequent attempts to try the defendant in Richmond county and in the adjoining county of New York, proved ineffectual. In the late case of The People v. Baker, where I changed the place of trial on an indictment for murder, although I referred to> two- unsuccessful trials in the county where the venue was laid,, yet I relied much more upon the causes and other evidence of popular excitement. I do not understand Judge Parker as repudiating, in the late case of The People v. Wright (5 How. Pr. R., 28), the doctrine of the late Supreme Court in The People v. Webb, and the later cases to which I have alluded.. He says that an actual unsuccessful experiment is not the only admissible proof to sustain the allegation of undue bias in the county where the venue is laid. He does, indeed, refer to the case of The People v. Webb as the only one cited, or which he had found, in which a change of venue had been granted, on the ground of excitement without a previous attempt to. impannel a jury. But he canvasses the proof in the case before him very closely, and relies upon its insufficiency to show the fact as the ground of his decision, which would have been unnecessary if the technical objection had been fatal.

The main allegation in the case under consideration is, that there is a strong and controlling excitement against the defendants, upon the principal question involved in these controversies, in the city of Brooklyn, caused, principally, by those who had been instrumental in procuring the indictments. It is not averred, or, so far as the papers go, even supposed, that it prevails in the rural parts of the county. According to the census of 1855, the population of the city of Brooklyn was 205,250, while that of the' other towns in the county was 11,105. Comparatively, the number of jurors from the rural districts must be very small. In an ordinary panel, there would not probably be enough to constitute a single jury. Even if a jury could be selected from the county, there could not be more than one from the entire panel, and the other cases would have to be tried by Brooklyn jurors, or go over to another term.

If, therefore, the objection to the jurors extends no further than to the residents of Brooklyn, still, if it prevails generally as to them, it is enough to call upon us to change the place of trial. Several facts have been stated to show that there is a strong excitement and a hostile feeling against the defendants, in reference to the charges of nuisances contained in the indictments, prevailing extensively not only among the residents along Atlantic street, but extending through the entire city. Before any action by the common council against the defendants, meetings of the inhabitants were called by hand-bills and notices posted up in many public places in the city and in the ferry boats. In some of them there were such expressions as the following: “ Odious railroad monopoly“ Running the filthy manure cars“Obstructing the street with a tunnel;” “ Tremble, tyrants, when you read the doctrines of our inalienable rights;” “They have usurped possession of the streets without any legal right;” “ This locomotive nuisance;” “The people cannot be silenced forever;” “Its locomotive rushes wildly on, destroying all before it! the victims! the victims 1” “ Only thirteen Irishmen and one Dutchman have been killed by this railroad;” “ The widows and orphans—who can depict the result in widows and orphans ?” “ The widows and orphans by this road since it crossed our street;” “ The railroad insists upon running the locomotives in our streets, regardless of life! blood! blood! more blood!” One of the meetings was called to consider “ Why South Brooklyn should be destroyed by nuisances?” “Why this railroad is suffered to run over, mangle and kill citizens, without conscience?” “Why horses and vehicles are run down, crushed and destroyed in our streets without compensation ?”

It appears from one of the papers submitted to us, that at one of the meetings called by a public advertisement, to which, according to a statement in one of the affidavits, several thousand names were subscribed, and held in the large hall at the Atheneum, every seat in the hall was filled, and that the presidenfc and three of the vice-presidents were ex-mayors of the city, and there were twenty-seven other vice-presidents, among whom were many gentlemen of high standing and extensive influence; an application was made to the common council to abate the alleged nuisance. The matter was referred to a committee, which held several meetings in a large room, which was closely crowded. The audience was disorderly, and according to the affidavits presented by the defendants, many, and according to the affidavits in behalf of the prosecution, a few of the spectators hissed when the counsel for the defendants were addressing the committee. A report was made decidedly unfavorable to the defendants, and the common council, in accordance with the report, adopted a resolution condemning the use of Atlantic street by the defendants as a public nuisance. There was no statement of the votes of the members of the common council among the papers presented to us, but a majority of the aider-men, representing a large part of the entire city, must have concurred in the condemnation. The report of the committee and the concurrent ordinance of the common council, were extensively published in the city papers. Subsequently, complaints were made to a grand jury, composed, doubtless, principally of inhabitants of the city of Brooklyn, and the same grand jury found six indictments against the Long Island Railroad Company, and three indictments against the Brooklyn and Jamaica Railroad Company. Why so many indictments were found for the same offence, for the road is actually used only by one of the companies, was not explained to us. Among the papers presented to us, is a copy of a petition signed by thirty-five persons, containing strong representations against the conduct of the defendants, which was addressed to the grand jury, and is said to have been received by them. This was all wrong, and would, if properly noticed, have gone far to vitiate the indictments. At the late State election, the candidates in Brooklyn for the two seats in the Senate, and the seven seats in the Assembly, were catechised by a committee upon the subject of allowing the defendants to continue the alleged nuisance, and all avowed their opposition to it. These and such as these are the facts presented to us by .the defendants in support of their motion. They are not controverted to any considerable extent by the prosecution. There is an affidavit by the District Attorney, and there are several affidavits by others, many of whom have been instrumental in procuring the indictments, expressing a strong impression of those making them, that an unbiased jury can easily be obtained in the county of Kings. There are no facts stated, and from the nature of the case it could not well be expected that any should be stated to show that no prejudice prevails generally in the city of Brooklyn against the defendants upon the question involved in this controversy.

Taking into consideration all the circumstances, it seems to me that the defendants ought not to be tried by a jury consisting, as it must, if taken from the body of the county, principally of the citizens of Brooklyn. I have every confidence in the intelligence and devotion to justice of the jurors of that city. But they may, and possibly have, imbibed strong predjudices upon a subject of great public interest, and no one is willing to be tried by jurors prejudiced against himself or his interest, however respectable and well informed they may be. That the residents on a long and populous street, extending from the South Ferry to Bedford, are warmly and actively opposed to the defendants in this controversy, and thus are disqualified from acting as jurors, there can be no doubt. A feeling operating through such an extended locality, is apt to prevail much further through the influence of business connections, family ties and friendly intercourse. That it has extended itself through a large portion of the city, is apparent from the large public meetings, the action of the common council, composed, as it is, of representatives of the whole city, and possibly the multiplied action of the grand jury. I do not mean to say that in all this the citizens or the common council or the grand jury have erred, but it does seem to me, with the greatest respect for all of these bodies, that the conduct of the public meetings and the people’s representatives, indicates a foregone conclusion against the defendants, yrhich renders it proper that the questions to be tried in these cases, should be submitted to jurors to be selected from another community.

The District Attorney objects principally on the ground that a trial in another county would subject the witnesses for the prosecution, who, he says, are numerous, to great inconvenience, and yet he states in his affidavit that the cases will be decided principally, if not wholly, upon a question of law. If he is right in that, there cannot be any urgent necessity for the attendance of many witnesses. We are not informed by the papers before us, nor do I know from any source, what particular. questions are involved in a general charge brought against the defendants.

It is so well understood, that I think we may take judicial notice of the fact, that the inhabitants of our cities generally suppose that the use of steam in propelling locomotives through their streets, is so far obnoxious that it is unjustifiable. If that should be the aground of complaint, or if, in addition to that, it should be contended that tunneling a street for railway purposes was illegal, but few witnesses would be necessary. These are the only questions of law which, so far as I understand the cases, will be probably involved on the trial.

The District Attorney objects to sending the cases for trial to either of the other counties, on the island, on the ground that the popular feeling there is in favor of the use of steam on the railroad in Brooklyn. The evidence to prove the existence of such favorable feeling among the inhabitants of those counties, is inferior to that going to show the prevalence of hostile feelings in the citizens of Brooklyn; but still I am not inclined to change the place of trial to either Suffolk or Queens county. It is better that the cases should be tried where there is clearly no popular bias or prejudice which might interfere with the due administration of justice.

The court house in the county of Westchester is not distant from Brooklyn, and with the present conveniences of traveling furnished by the railroads, there can be no great inconvenience or heavy expense incurred in taking the witnesses to White Plains. For the reasons I have assigned, but certainly from no distrust of the intelligence or ordinary impartiality of the jurors of the county of Kings, I am inclined to change the place of trial in the cases under consideration, into the county of Westchester. Liberty should, however, be given to the public prosecutor and the defendants to select any other county by mutual consent.

Motion granted.


source: Caselaw Access Project

author: Sutherland, J.

license: Public Domain

text:
    Supreme Court. At Chambers. New York,
    August, 1860.
    Before Sutherland, Justice.
    The People v. Catharine Forbes.
    Satisfactory evidence that a female is “ a common prostitute and idle person,” will not authorize her conviction as a vagrant under the statute.
    “Common prostitutes” and “idle persons” are not necessarily vagrants; it is only “common prostitutes who have no lawful employment whereby to maintain themselves,” and “idle persons who, not having any visible means to maintain themselves, live without employment," that come within the vagrancy acts.
    These acts are constitutional, but should be construed strictly and executed carefully in favor of the liberty of the citizen.
    Where a person is committed as a vagrant, the record and commitment should set forth the grounds on which the charge of vagrancy was based,

    Catharine Forbes had been committed as a vagrant by one of the police justices of the city of Kew York. The commitment showed that she had been convicted of being “ a common prostitute and idle person.” She was brought up, on habeas corpus, before Mr. Justice Sutherland, at chambers, who, after hearing counsel, delivered the following opinion, and discharged the prisoner:

        Sed vide the next case, The People v. Gray.

   Sutherland, J.

The warden of the city prison returns to the writ of habeas corpus allowed by me in this matter, a copy of the warrant of commitment under which the prisoner was, received into his custody, and by virtue of which she is held and detained.

After hearing counsel, and after giving to the subject the most serious consideration called for, as I thought, by its great importance and public interest, I have come to the conclusion that the warrant of commitment, on its face, is absolutely void, and that the prisoner must be discharged, on the ground that it does not appear on the face of the commitment that the prisoner had been duly convicted of being a vagrant, or, indeed, that she has been convicted or committed for any offence or crime whatever.

The question on the face of the commitment arises in this manner: The warrant of commitment (which is under the hand and seal of Mr. Quacltenbush, one of the police justices of this city), not only in due form recites the conviction of the prisoner, on competent testimony, of being a vagrant, but proceeds to state and specify the facts, circumstances or conditions which made or constituted the prisoner a vagrant, and on competent proof of which it must be assumed that the committing magistrate determined that the prisoner was a vagrant.

The words of the commitment are: “Whereas, Catharine Forbes stands charged, and is, on competent testimony made before me, lawfully convicted of being a vagrant—in this, to wit: that she is a common prostitute and idle person, of which conviction a lawful record in due form has been made and filed, and it appearing to me, for the cause aforesaid, that she is a vagrant within the meaning of the statute, &c., I do decide and determine that she be committed,” &c.

The commitment then, on. its face, presents this question: Did competent and satisfactory testimony that the prisoner was a common prostitute and idle person, authorize her conviction and commitment as a vagrant? yThere was no such common law offence or crime as vagrancy and idleness^ By certain statutes, all persons coming within a certain description defined and declared by the statutes, are declared' to be vagrants, and provision is made for their trial, conviction and imprisonment. We have two such statutes. By the Revised Statutes (2 R. S., 879, 5th ed.), all idle persons who, not having any visible means to sustain themselves, live without employment; all persons wandering about and lodging in taverns, groceries, or beer-houses, outhouses or market places, sheds or barns, or in the open air, and not giving a good account of themselves; all persons wandering abroad and begging, or who go about from door to door, or place themselves in the streets, highways or other public places to beg or receive alms, shall be deemed vagrants. Common prostitutes, as such, are not named in this statute, and although they may be, and are, perhaps, most likely to be, or to become vagrants within the description of the statute, yet it is plain if a common prostitute is lawfully convicted of being a vagrant under this statute, she must be so convicted not merely on her confession, but on competent testimony that she is a common prostitute or an idle person. This statute does not declare common prostitutes as a class or by name to be vagrants, nor does it declare all idle persons to be vagrants, but only such idle persons as live without employment, and yet have no means to maintain themselves. By an act passed January 23, 1833, which, from its title and provision, would appear to be confined in its operations to the city of New York, “All common prostitutes who have no lawful employment ■ whereby to maintain themselves,” are declared vagrants. It is presumed that the prisoner, Catharine Forbes, was arrested and convicted under this act; but by this act common prostitution is neither defined nor declared to be a crime. By this act a certain class or description of common prostitutes are declared to be vagrants. Every word which defines this class, or makes a part of this description, is material and important.

The magistrate, in acting under the act, had no right to disregard one word of that description. He has no right, I think, to say or determine that a common prostitute is a vagrant within this act, merely because she is also idle or an idle person, without proof of any other fact or circumstance. To be a vagrant within this act, the common prostitute must be without any lawful employment whereby to maintain herself. These words imply, I think, something more than being idle, or in an idle condition, and probably something more even than habitual idleness. They imply, I think, a want of any lawful business, occupation or means whereby to sustain herself. It is plain that, substantially, the same words as used in the Revised Statutes in describing the kind or class of idle persons declared to be vagrants, mean something more than mere idleness, otherwise the statutes would have declared all idle persons to be vagrants. The object of this act is not to punish common prostitutes as a sin or moral evil, or to reform the individual, but to protect the public against the crimes, poverty, distress or public burdens, which experience has shown common prostitution causes or leads to.

These statutes declaring a certain class or description of per* sons vagrants, and authorizing their conviction and punishment as such, as well as certain statutes declaring a certain class or description of persons to be disorderly persons, and authorizing their arrest as such, are in fact rather of the nature of public regulations to prevent crime and public charges and burdens, than of the nature of ordinary criminal laws prohibiting and punishing an act or acts as a crime or crimes.

If the condition of a person brings him within the description of either of the statutes declaring what persons shall be esteemed vagrants, he may be convicted and imprisoned, whether such a condition is his misfortune or his fault. His individual liberty must yield to the public necessity or the public good; but nothing but public necessity or the public good can justify these statutes, and the summary conviction without a jury, in derogation of the common law authorized by them. They are constitutional, but should be construed strictly and executed carefully in favor of the liberty of the citizen. Their description of persons who shall be deemed Vagrants is necessarily vague and uncertain, giving to the magistrate in their execution an almost unchecked opportunity for arbitrary oppression or careless cruelty. The main object or purpose of the statutes should be kept constantly in view, and the magistrate should be careful and see, before convicting, that the person charged with being a vagrant is shown, either by his or her confession, or by competent testimony, to come exactly within the description of one of the statutes. (See opinion of Edmonds, Circuit Judge, in the People v. Phillips, 1 Park. Cr. R., 95.) In this case there is not the least ground for supposing that the committing magistrate’s proceedings were not in good faith, and with the sole view of conscientiously discharging his duty. But no record of the conviction has been produced, and by an affidavit made in this matter, it appears probable that none has been filed in the clerk’s office of the Court of Sessions, as required by the act of 1833, and the act of April 10,1835, amending it; and I can therefore only look to the warrant of commitment to see whether the prisoner was lawfully convicted of being a vagrant, or of any crime or offence. For the reasons above stated, I think the commitment on its face does not show that the prisoner was lawfully convicted of being a vagrant, or of any offence or crime. Mo statute of this State has yet declared common prostitution or idleness to be a crime, and I think, for the reasons above stated, that the determination of the magistrate—that proof that the prisoner was a common prostitute and idle person, authorized her conviction as a vagrant—was erroneous.

The prisoner, therefore, must be discharged.


author: Ingraham, J.

text:
    Supreme Court. At Chambers. New York,
    September, 1860.
    Before Ingraham, Justice.
    The People v. William Gray.
    Where a conviction of vagrancy before a police justice is reviewed on k'beas corpus before a judge at chambers, the only inquiry should be, whether the justice had jurisdiction of the prisoner, and whether the prisoner was committed for an offence within the statute.
    The offence consists in being a vagrant; and it is not necessary that the record or the commitment should state the grounds on which the charge of vagrancy was based. It is enough that they show that the prisoner had been charged with being a vagrant, and was convicted of that offence.

    The prisoner was brought before Mr. Justice Ingraham, at chambers, on habeas corpus, and his discharge claimed, on the ground that enough did not appear on the face of the commitment to authorize his detention! The facts are fully stated in the following opinion:

         See last preceding case, The People v. Forbes.

   Ingraham, J.

The prisoner was committed by a police jus-

tice, on the ground of his having been convicted of being a vagrant, viz., an. idle person not having visible means to maintain himself, and an habitual drunkard.

He is now brought before me on habeas corpus, and his discharge asked for on the ground that the commitment is not for any offence punished by statute.

The practice of reviewing convictions before justices on habeas corpus, is not to be commended. The statute provides another mode for correcting the errors of the justice, which should be resorted to. If the commitment is irregular, and the justice has jurisdiction of the matter, no relief should be afforded in this proceeding.

It is apparent, therefore, that I should only inquire whether the justice had jurisdiction of the prisoner, and whether he has committed the prisoner for an offence defined in any of the statutes of the State. I think there can be no doubt on both points. The jurisdiction of the justice making the commitment is not disputed.

The offence of which the prisoner was committed is stated as follows, viz.: “ Who stands charged before me with being a vagrant, viz., an idle person, who, not having visible means to maintain himself, and is an habitual drunkard.” The confusion of the sentence arises from the use of a printed form of commitment, and erasing part, so as to insert another grade of the same offence, as provided by the statute.

By ike Revised Statutes (vol. 1, 602), an idle person who, not having means to maintain himself, lives without employment, is to be deemed a vagrant. In the present case, the words “lives without employment” are erased from the commitment.

By the act of 1833, “ a person who, being an habitual drunkard, is destitute and without visible means of support,” is to be deemed a vagrant. In this case the words “ is destitute ” are stricken out.

If it were necessary that all the matters required to be proven should be stated in the commitment, then neither of-fence is fully stated therein. But I am of the opinion that it is not necessary that the commitment should state all the par ticulars necessary to make out the offence. The offence is being a vagrant. The justices state that the prisoner has been charged with being a vagrant, and was convicted on competent proof. This is sufficient to show the offence charged and the conviction. (See People v. Moore, 3 Park. Cr. R., 465.)

In a commitment for petit larceny, it is enough to state that offence without reciting the goods stolen or the owner of the. property. In the People v. Cavanagh (2 Park. Cr. R., 660), the general term of the second-district held that a commitment wdiich recited that the prisoner was convicted of a misdemeanor, was sufficient, and a more particular statement of the offence need not be made.

Even if a contrary rule had been adopted prior to 1855, since that time the mode in which the record of conviction is directed to be made up, would render such recital unnecessary.

That act (Sess. 1855, ch. 268), directs the form of the record of conviction to be in this respect as follows: “ That the prisoner was brought before the justice on the charge of being a vagrant, and that upon diligent inquiry, &c., it appearing that the said prisoner is a vagrant within the provisions of the statute, I, the justice, did so adjudge,” &c.

The commitment is sufficient if it follows the record, and when it is not required that the justice should insert in the record the particular grounds on which the charge of vagrancy is based, it cannot be necessary to recite them in the commitment.

The words defining the particular causes of vagrancy, may therefore be regarded as surplusage, and the charge of being a vagrant and being committed thereof is sufficient.

The prisoner is not without means of reviewing the judgment appealed from, and I do not feel at liberty, under the proceeding, to review that trial. At any rate, I am not willing to discharge a prisoner because the facts necessary to be proven are not recited in' the commitment.

I concur with the views of Mr. Justice Sutherland, in the case of Catharine Forbes, so far as they are expressed, as to what is necessary to be proved in ord.er to make out the offence, and unless, on a review of the case, it should appear that all the facts necessary to constitute the offence are proven, the conviction should be reversed; but as I do not consider that all such facts should necessarily be recited in the commitment, I feel bound to remand the prisoner, on the ground that ■the commitment is regular on its face, and the decision of the justice cannot be reversed in this proceeding. e

The prisoner must bé remanded.