author: Cowles, J.

text:
    New York Oyer and Terminer.
    April 10, 1855.
    E. P Cowles, Justice of the Supreme Court, presiding.
    The People vs. Hyler and others.
    A grand jury has full power to make inquiry and to present hy indictment, all persons charged with crime, whether such persons are or are not under arrest and examination before any of the magistrates of the county.
    It is no good reason for quashing an indictment, that at the time it was found, the defendants were under arrest on a warrant issued by the coroner, after an inquisition found by a coroner’s jury implicating the defendants in the crime, and that the preliminary examination before the 'coroner had not been brought to a close.
    Where a coroner’s jury finds that a murder has been committed and the coroner binds over the witnesses to appear at the next criminal court at which an indictment can be found, it is the duty of the grand jury to proceed at once to act upon the case without reference to the facts whether the accused is in custody or whether hé is then under examination before the coroner.
    This was a motion to quash an indictment for murder on grounds fully stated in the opinion of the court.

      H. F. Clark, for the defendants.

      A. O. Hall (District Attorney) for the people.
   After taking time for consideration, the following opinion was delivered by

Cowles, J.

This is a motion made in behalf of the defendants, Hyler, Linn, Morrissey and Irving, to quash the indictment and remand the parties back for a preliminary examination, on the ground that after the coroner’s jury had returned their inquisition, implicating them as accessories to the murder of Wm. Poole, they were arrested hy warrant issued by the coroner. That they thereupon demanded, hut were refused hy him an examination, hy witnesses to be called either for or against them, the coroner holding that under the statute he had no power to do more than take the personal statements.or examination of the defendants without oath. It will not be necessary now to discuss the question whether the coroner was right or otherwise in his construction of the law, further than to say that upon an examination of the statute I have arrived at the same conclusion with Mr. Justice Morris, when that question arose before him; and without stopping to assign my reason, shall hold .for all the purposes of this motion that the coroner erred in denying the defendants the examination they demanded. The question then arises, Have the defendants, by reason of such refusal, a claim upon the court for its interposition, as now moved for by them? It was not contended on the argument that there has been any irregularity in the finding- of this indictment; for it can not be denied that the grand jury have full power to make inquiry, and present, by indictment, all persons charged with crime; and that, too, whether such persons are or are not under arrest and examination before any of the magistrates of the county. But it is contended that where a party is arrested before indictment, there is a manifest impropriety and undue haste on the part of the grand jury in entertaining a complaint and proceeding to indict until the preliminary examination shall have been brought to a close, and that while the statute has not inhibited the grand jury from acting upon that class of cases, yet that a quasi right is possessed by the accused to have such examination fully closed before being presented by the - grand jury. I will not deny that in many cases, if the grand jury are apprized of the facts that the party is under arrest, and that the committing magistrate is proceeding with a full examination into the facts and circumstances attending the alleged offence, and particularly in that class -of cases the prosecution of which is initiated upon the complaint of the individual, and so assume a character in some degree personal to the prosecutor, it would be very wise and judicious in the grand jury to defer action until the magistrate has made return of all the testimony taken before him. This will always enable both the grand jury and the public prosecutor, by an inspection of the return, to judge of its character and form some opinion as to the probability of guilt or innocence, and the propriety of further prosecution. Such a discretion, if it exists on the part of the grand jury, would apply to all those casés where the' original complaint is made to a justice of the’ peace, 'and to all other cases'where a return of the protieedings'ahd examinations had are not made or' the witnesses recognized to appear and testify before the grand jury until the final close of the investigation before the committing magistrate. But an examination of the statute will show that in this case the gránd jury possessed no súch discretion. That they tiould not, had they been apprized of the "fact that these parties were under arrest and before the coroner for examination, defer their own action,' but were bound, if the testimony warranted, to indict. By 2 Revised' Statutes, 742, article 1st, in regard to coroner’s inquests," it will be Seen that upon notice received by the ’coroner that ahy person has been slain, it is the coroner’s duty forthwith to summon a jury tó appear before him and make inquisition concerning such death.' ‘ By section five, it is pro'vidéd that thé' jury, after inspection .of the body and hearing the testimony, shall deliver to’the coroner their inquisition in writing," in whitih they are id certify the'cause, manlier and circumstances of the' death, “ and who were guilty thereof, either as principal or' accessory, and in what manner.” ' " "

Section six provides that if “ the jury find that any murder, manslaughter or assault has been committed, the coroner shall bind over the witnesses to appear and testify at the next criminal court at which ah indictment for such an offence can be found that shall be held in the county,” and the last clause of the same section further provides that if “ the party charged with any such offence be not in custody, the coroner shall have power to issue process for his apprehension in the samé manner as a justice of the peace.”

Thus it will be seen, that by express mandate of the statute, the moment the coroner’s jury found ' and subscribed their verdict, the whole matter, with all the witnesses, was sent to the grand jury — sent to them to act upon at once, and with no discretion to delay their proceeding upon the charge, whether the accused were or were not in custody, or whether they were or were not under examination before the coroner, as provided in section seven. The case is therefore entirely unlike that other class to which I have heretofore alluded where the returns are not made nor the witnesses bound over to appear and testify until the preliminary examination is closed; and it would be, in my judgment, just as much a dereliction of duty in the grand jury to refuse to act after the coroner’s inquisition had been returned, as it would to give a similar refusal after the return of the preliminary examination by the committing magistrate in that class of cases. If I am right in the view I have taken of the mandatory character of the statute which controlled the action of the grand jury in this case, there is of course no ground on which this motion can be granted. That the indictment is regular is conceded, and the court can not be held to possess a discretion to set aside an indictment as prematurely found in a case where the grand jury have none to refuse finding it. The motion to quash must therefore be denied.


source: Caselaw Access Project

author: By the Court, Cowles, J.

license: Public Domain

text:
    New York Oyer and Terminer.
    April, 1855.
    Before E. P. Cowler, Justice of the Supreme Court.
    The People vs. Hyler and others.
    On a motion to admit to bail, on an indictment for murder, upon the testimony taken before the coroner and before the grand jury, the defendants •will not be permitted to furnish further, proof, either by affidavits or oral testimony, tending to establish their innocence.
    The court in all cases, capital or otherwise, exercises its discretionary powers to admit to bail, when upon examination of the testimony under which the accused is held, the presumption of guilt is not strong; and the court is particularly called upon to bail in all cases, where the presumptions are .decidedly in favor of the innocence of the accused.
    A grand jury ought not to find an indictment, unless the testimony against the accused, ex parte and unexplained, is sufficient to convict.
    The defendants had been indicted for the murder of William Poole. A motion was made to admit them to bail.

      Russell, for defendant Van Pelt.

      Nye and H. F. Clark, for the other defendants.

      A. Oakey Hall, (District Attorney,) for the people.
   By the Court, Cowles, J.

This is an application to admit to bail all of the defendants except Baker who is still at large The motion is based upon the testimony taken before the coroner, and that taken before the grand jury, on which the indictment was found. The defendants at the same time ask leave to furnish further proof, by affidavit or oral testimony, on the subject, showing their innocence of the offence charged, as affecting the question of bail. The district attorney at the same time also moves for an increase of the bail heretofore taken from the defendant Irving. The first question to be settled is, whether such proof can be received. After a careful examination of the subject, I have come to the conclusion that such proof can not be received. It has not been the practice heretofore, either in this country or in England, nor can such a precedent be established without making an application for bail substantially a trial upon the merits; for if the prisoner can produce such evidence in his own behalf, the public prosecutor should be permitted to controvert it, which, in effect would transform a motion to bail into an examination into the guilt or innocence of the prisoners. The rule seems to be well settled t.o the contrary, and with reason, because, to open the whole question of guilt or innocence to proof on a motion to admit to bail, would be attended' with most serious public inconvenience. In most cases there will be extant on the files of the court, the preliminary examination of the accused, or the testimony before the coroner, or that before the grand jury; in some cases all. True, as in this case, a party may sometimes, by casualty be deprived of the benefit of a preliminary examination, but the hardship in a particular instance should not induce the establishment of a precedent which would prove of great public inconvenience. The motion to put in proof must therefore be denied.

This brings us to the main question. The power of the court to bail is unquestioned. But the principles which will guide the court in the exercise of this power have been well established, and will be recognized here as the true rule by which to be-governed. It has been said that in the higher class of offences, particularly of a capital nature, a court will not bail after indictment, although they may before. This distinction has arisen from the fact that in one case the court have before it the testimony taken before the coroner’s jury, or before the committing magistrate, and can thus, by an inspection of the testimony, be enabled to form some judgment as to probable guilt or innocence; while in the other case, the old rule did not permit the-testimony before the grand jury to be disclosed, and the court were, therefore, after indictment, unable to say on what proof it had been found. In Lord Mohan's case, (1 Salk. .104,) it was said, If a man be found guilty of murder by a coroner’s inquest, we sometimes bail him because the coroner proceeds upon depositions taken in writing which we may look into) otherwise, if a m.an be found guilty of murder by a grand jury, because the court cap not take notice of their evidence, which they by their oath are bound to conceal.” “ A man charged with murder by the verdict of a coroner’s inquest may be admitted to bail, though not after the finding of an indictment by a grand jury.’-’ (1 Chitty Crim. Law, 129, Jim. ed. of 1836.) And the reason is the same as above given. So in 1 Martin Louis. Rep. 142, The Territory v. Repoit, the court sayí “ On a coroner’s inquest finding a person guilty of a capital crime, the judges have often looked into the testimony, which the coroner is bound to record, and when they have been of opinion that the jurors had drawn an illogical opinion, ■ admitted the parties to bail. But as the evidence before the grand jury is not written, and can not be disclosed, the same discretion and control can not b,e exercised, and the judges can not help considering the finding of a grand jury too great a presumption of the defendant’s guilt to bail him.” Other instances to the same effect might be cited, all showing that the distinction made between balling in capital cases before or after indictment has been founded on the reasons above given; that before the indictment the court have access to the depositions and testimony on which the charge is based, and in the other case could-not, because the grand jury were required to keep the testimony before it secret; and the c.ourt having no means of inferring otherwise, would, therefore, always imply that the grand jury had not indicted on insufficient proof, and so refuse to bail. Such difficulty, however, does not exist in this case. It is provided by 2 R. S. 724, § 30, that “ every grand jury may appoint one of their number to be a clerk thereof, to preserve minutes of their proceedings, and of the evidence given before them, &c., which was dope here; and the whole evidence taken before the grand jury who found this bill, it is admitted: is before, the court, consisting of the record of. the testimony taken before the coroper’s jury,, which was also read before the grand jury, together with a full record of all other facts testified to before the grand jury. The question of bail is, therefore, open to consideration to the same extent as it would be if applied for before indictment, for the court know on what testimony this indictment was found. The question then arises, urider what circumstances can bail be given in cases like the presentí In the case of the People v. Goodwin, (1 Wheeler Crim. Cases, 445,) the late Chief Justice Spencer says: “That if it stands indifferent whether a person charged with a felony be guilty or not, he ought to be bailed and that even in capital cases, where there are' any circumstances to induce the court to suppose he may be innocent, they will bail.” That most eminent jurist, in the same case, after stating further that there is no fixed of certain rule for every case, but that each one must be governed by the peculiar circumstances attending it, says: Thé' object of imprisonment before conviction is to secure the forthcoming of the person charged' with thé commission of a crime,' and it is never ¿intended as any part of the punishment, for until the guilt of the party be legally ascertained there is no ground for punishinént, and it would be cruel and unjust to inflict it.” The laws (says he,) of every free country estimate pérsonál liberty as of the most sacréd character, and it is'not to be violatéd or abridged beforé trial. If (he further says,) the punishment be'death or corporeal imprisonment, a conciousness of guilt would probably induce flight and an evasion of the punishment, and in admitting to bail therefore, regard dust be had to the probable guilt of thé party, and the nature of the punishment.” He then proceeds to recapitulate the facts in that particúlar casé which was for manslaughtér, stated "the prisóñér had once been tried arid the jury disagreéd; that the foreman had, when called^ reridered a vérdict of guilty, but that on being polled, one of the jury dissented, and then proceeds: “I am therefore]bound* to presuine" that the prisoner maybe imiocént of the offence. In such a case as I understand the law, he is entitled to'be bailed.” These principles were approved by the court in the case of Tayloe, ("5 Cowen, 39,) which was a case of homicide before indictment, and in that case, after approvirig of thé rule laid dowri'by Chiéf Justice’ Spencer in the case above cited, Chief Justice Savage says: “ If the facts in the case now before the court afford the same presumptions of innocence, and it appears to the court from the depositions that it is quite indifferent whether he is guilty, then in my opinion he ought to he bailed, otherwise not.” The same rule has been repeatedly recognized in England. Hawkins Pleas of the Crown, B. 2,ch. 15, § 40 to 50; Rex v. Dalton, 2 Str. 911.) In Com. Digest, Bail F, it is said, the court will not bail in murder, treason, &c., unless there be reasonable cause.” The criminal code of Louisiana, contains a provision, which seems to be a summary of the common law rule on this subject. Article 192 provides that All persons shall be bailable except for capital offences, where the proof is evident and the presumption great;” and then reciting that murder, rape, and some other offences, are punishable with death* proceeds: “ Persons accused of the offences above enumerated, (capital offences) are also to be bailed when the proof is not evident nor the presumption strong.” The general proposition deducible from the foregoing authorities is, that the court in all cases, capital or otherwise, exercises its discretionary -powers to admit to bail, when from the testimony under which the accused is held, it is indifferent whether he be innocent or guilty; in other words, when upon examination of the testimony, the. presumption of guilt is not strong, and they are particularly called upon to bail in all cases where the presumptions are decidedly in favor of the innocence of the accused.

It may be well here also to inquire on what testimony an indictment should be based. ■ I am satisfied that this most important matter is oftentimes overlooked, and still oftener, per-' haps, misunderstood by our grand juries; and yet such is the very nature of the organization of a grand jury; such its mode of proceeding, the secrecy of its action, and the ex parte character of the testimony taken before it, that these errors are rarely, and then only incidentally, brought before the court for review. These errors the court should vigilantly watch, and, as far as practicable, correct. In no case is injustice more likely to be done, than in the finding of indictments on insufficient proof; an injustice difficult to be guarded against, and yet oftentimes most oppressive in its consequences to the accused. I can not regard the indictment as in theory a mere accusation based upon probable cause to believe the. accused may be guilty, like the finding of the committing magistrate, but as a' direct and positive charge on oath that upon the testimony before the grand jury, ex parte and unexplained, the jury find he is guilty.

In 1 Chitty Crim. Law, 318, it is said: “Formerly it was laid down that a grand jury ought to find the bill, if probable evidence were adduced to support it, because it is only an accusation, and the defendant will afterwards defend himself before a more public tribunal. But great authorities have taken a more merciful view of the subject, and considering the ignominy, the dangers of perjury, the anxiety of delay, and the misery of a prison, have argued that the grand inquest ought, as far as the evidence before them goes, to be convinced of the guilt of the defendant. What was therefore anciently said of petit treason may be applied to all other- offences, that since it is preferred in the absence of the prisoner, it ought to be supported by substantial testimonies.” “ Indictments,” says Lord Coke, “ being the foundation of all capital proceedings, found in the absence of the party accused, and only the evidence for the king being adduced, it is necessary that the proof of the offence should be substantial.” (3 Coke Inst. 25.) In a note to 4 Hawkins Pleas of the Crown, p. 82, we find the following: “ It has been observed with great strength of argument that a grand jury ought to have the same persuasion of the truth as a petit jury or a coroner’s inquest.” (Vide 'also 4 State Trials, 183.) Blackstone uses the following language: “A grand jury ought to be thoroughly persuaded of the truth of an indictment so far as their evidence goes, and not to rest satisfied merely with remote possibilities; a doctrine that might be applied to very oppressive purposes.” (4 Bl. Com. 303.) The rule, as thus laid down, I believe to be the true one. No other, in my judgment, is safe, nor is it to be tolerated that a citizen shall be charged with a serious offence, and sent to a petit jury for trial, unless the éx parte testimony taken in his absence, with no power of cross-examination, shall at least, if unexplained, show him guilty. This is implied in the very" language of the indictment: “ The jurors, &c. upon their oaths present that A B is guilty,” &c. How upon their oaths can they say the accused is guilty, unless as" the testimony stands before' them, the prooi unexplained would lead logically to such conclusion? Is it to be tolerated that grand juries are to speculate upon the chances of the guilt or innocence of the citizen? If the grand jury can not say that the testimony they have taken ex parte is strong enough to lead" to" conclusion of guilt, is the citizen to be subjected to all the ignominy of an indictment, and the rigors perhaps of a long confinement in a prison, to the injury of his health and character, and the ruin of his business, on a suspicion merely that he may be" guilty? I do hot so understand the law, but as above stated," that the testimony must be sufficient in degree to convict, if unexplained. Such are the principles which must govern in the cases now before the court.

The parties who apply for bail, seven in number, viz: McLaughlin alias Pargene, Turner, Hyler, Lynn, Van Pelt, Morrissey and Irving, are all charged by the indictment as accessories to the murder of William Poole. The" testimony shows that upon the evening of the homicide,, without anticipation of a meeting by either party, Morrissey and the deceased met in a public house in this city; that they were enemies; that on meeting a violent quarrel ensued between them, and much feeling was excited; that Poole, supposing probably he would be assaulted, drew a pistol and pointed it at Morrissey; that Morrissey was soon furnished with one, which he snapped at Poole; that at this time Irving interfered, and attempted to prevent any difficulty, and that after much excitement, but no" blows given, the parties were separated by the arrest of both' Poole and Morrissey, both of whom were taken away and in opposite directions. None of the accused were present at this first quarrel but Morrissey, Irving and Hyler. As the parties were taken from the house, Irving also left, and was not seen in company with the accused again that night, and the weight of the testimony is that he went directly home and did not hear of the subsequent affray until the next morning. The only other testimony as to Irving is that some months before this he had been heard to make threats in regard to Poole, and to declare his intention to procure his death. As to Morrissey the whole testimony goes to show that after the difficulty, he in company with some of the accused and others, called at different drinking places; that he became very much intoxicated, and was taken home before the second affray in a state of senseless inebriation. There is no evidence that he conspired with any other parties to have a further collision with Poole that night, or expected one, and the inference from the testimony is conclusive that he knew nothing of the subsequent difficulty which resulted in Poole’s being shot, until after the occurrence and was then in too inebriated a state to be made to know it until the next morning. As to Hyler, Lynn, and Van Pelt, the theory of the prosecution is that they in conjunction with Baker, Pargene, and Turner, formed a conspiracy for the purpose of a joint attack the same night upon Poole, and together went to the scene of the first difficulty with that end in view. That these parties last named did go to the scene of the homicide and probably in company, is true. That a difficulty soon ensued between a portion of the party and Poole, is equally true, and Poole received a shot which resulted in his death some days after. To connect Hyler, Lynn, or Van Pelt with this shooting, so as to make either one liable as an accessory, it is necessary for the prosecution to first establish a guilty confederacy among, them having that end in view; for, so far as the proof shows, no overt act on the part of either of these three parties was committed after they entered Stanwix Hall, which indicated any participation in the attack on Poole. Van Pelt on that occasion, as the evidence shows, interfered with Pargene, one of the accused, to prevent his assault on Poole, and was knocked down for his attempt and immediately left the house. Neither Lynn nor Hyler joined in the attack that was made, nor in any way showed a hostile purpose by any overt act. The strongest view that can be taken of the case unfavorably to the defendants, Hyler-, Lynn, and Van Pelt, is that there are strong suspicions that they may have known Poole was at Stanwix Hall, and went there with others tc attack him or at least to witness the attack. There are some circumstances which favor such a theory, but as far as the circumstances in proof now go, they are not "sufficient of themselves without other proof "to warrant a finding that it was so The case as to them therefore falls within the rule laid down in the People v. Goodwin, (1 Wheeler Crim. Cos. above cited.) As was said by Chief Justice Spencer in "that case, "so am I compelled to say in this, “ I am bound to presume they may be innocent of the offence.” I am équally bound to say that the proof as it how-stands, would not justify the conviction of Hyler, Lynn or Van =Pelt. They must therefore be admitted to bail.

As regards Irving and Morrissey, I must go still further and say that upon”the testimony, I am entirely clear, there is not only none on which a conviction can be had, but that the proof did not warrant the finding of the indictment. Whatever may have been the errors or the follies of either Irving.or Morrissey, it will not answer to allow of a precedent so dangerous to the liberty of the "citizen as that of upholding an indictment based on testimony So utterly insufficient, "and while the grand jury in the discharge of its most responsible and important duties, will always-have the firm and steady support of this court, the court must with équal firmness and fidelity guard the personal rights of the citizen against the consequences of so dangerous a precedent as that-of sustaining or favoring an indictment the finding of which is so utterly "unwarranted by the proof.

It only remains to fix upon the amount of the bail to be given by the several parties. That of Irving having been already fixed by Mr. Justice Morris, will remain-undisturbed.'

Morrissey must be admitted to bail in the sum of ten "thousand dollars.

Hyler, Lynn and Van Pelt must be admitted-in the sum of twenty thousand dollars each.

Proper notice in each of the cases must be given to the district attorney of the persons proposed as bail, that he may inquire into their sufficiency.

As to the other two parties (Turner and Pargene) who have applied for bail, it is only necessary to say that the application in their behalf must be denied.

At a subsequent day, on the suggestion of the prisoner’s counsel, assented to by the district attorney, that the bail fixed was beyond the ability of some of the parties to furnish, the court modified the order, fixing the bail of Van Pelt at $4000, of Lynri and Hyler at $ 10,000 each, which was given as thus fixed, by all the parties.


author: By the Court, Morris, J.

text:
    New York General Term.
    November, 1855.

      Clerke, Morris and Mitchell, Justices.
    The People vs. Edward Christie and others.
    Where a juror, on being called, is challenged on the ground of his having formed or expressed an opinion as to the guilt of the prisoner, such juror may be examined as a witness for the purpose of sustaining the challenge. A juror when examined as a witness for the purpose of sustaining a challenge to the favor, will not be excused, from answering whether he has any prejudice or bias against a religious sect, on the ground that such answer would disgrace him.
    Where on the trial of several defendants on an indictment for a riot, it appeared that a secret society had been organized for the purpose of repressing the class or sect to which the defendants belonged, it was held to be competent to require a witness, who had been called and testified on the part of the prosecution, to answer on his cross-examination, whether he was a member of such secret society

      Certiorari to the New York General Sessions. The defendants were jointly indicted for riot, committed in the ninth ward of the city of New York, on the 4th day of July, 1853; the defendants pleaded not guilty; and on the 14th day of December, 1853, the issue of traverse so joined, came on to be tried before Hon. Francis Tillou, recorder, &c., the defendants being tried jointly.
    On the first juror, Samuel Carson, being called, he was challenged for principal cause by the defendants, on the ground of his having formed or expressed an opinion of the guilt of the prisoners, or some of them. This challenge was denied by the people, and issue was thereupon joined. The defendant’s counsel, John McICeon, offered as a witness, to prove the challenge, the juror himself. This was objected to by the people, and the objection sustained by the court; to which decision the defendant’s counsel excepted.
    ' It was admitted for the purpose of' the argument as to the challenge of jurors, that on the 4th day of July last past, there was a procession of a society called the Ancient Order of Hibernians, a society composed of Irishmen and Roman Catholics; that the defendants were members of that society. And it was admitted, for the purpose of the argument as to the challenge of jurors, that a portion of the‘defendants are Catholics, and a portion foreigners; that the alleged riot took place in the neighborhood of Abingdon square, in the ninth ward of the city of New York, through which the procession passed, and that during the riot, expressions of a hostile -and -insulting character were used-by some of the parties engaged, as for instance, “ kill the d—d Irish,” “ kill the d—d Popish kill the d—d Yankees.” It was' also contended by the defendants’ counsel, for the purpose of the challenge to jurors, that a strong prejudice existed amongst the police and inhabitants of that section of the city against Irish and Roman Catholics.
    Several jurors were called and rejected; some were peremptorily challenged; one of the jurors being called and challenged to the favor, on the ground that he had a bias, prejudice or impression against the prisoners or so'mb of them, triers were appointed by court'; one juror so challenged for favor was rejected by the triers, when James Black was called as a juror, who was'challenged to the favor by defendants’ counsel, on the ground that the juror called had a bias, prejudice or impression against the defendants or some one of them.
    This challenge was denied by the people, and issue was thereupon joined. The same triers as in the former cases were, by consent, in this case appointed. The defendants called as a witness to prove the challenge, the juror so called, who, after answering several questions in relation to the ground of challenge, was asked the following question:
    Q. Have you any bias or prejudice against Roman Catholics!
    To this question the district attorney objected, and contended that the juror was not bound to answer, if he thought it would disgrace him. The court sustained the objection of the district attorney, to which decision the counsel for defendants excepted: The court thereupon informed the witness that he was not bound to answer the question, if in his opinion the answer would tend to disgrace him; to which instruction and decision the defendants’ counsel excepted. On the question being put, the juror declined to answer.
    The defendants then moved the court to compel the juror, as being a witness, to answer the question, which the court refused to do. To which decision and refusal the defendant’s counsel excepted.
    Timothy H. West was called as a witness on the part of the prosecution, and testified as follows: That he lived in No. 23 Eighth avenue; is a house carpenter; saw the procession; there was a space of twelve feet or more through which the stage driver passed; heard the expression—“ Kill the d—d son of -.” After witness left his son in Troy street, witness returned to the stage. He then met a policeman and told him the “ Order of Hibernians had attacked the stage-driver, and were about to murder him on the spot.” McPherson went in and told them to disperse; two men made a pass at him; I stepped back to Eighth avenue; he did not see the marshal at the time of the affair with the stage.
    On being cross-examined, the witness was asked:
    Q. Do you belong to the Order of United Americans!
    This question was objected to by the people. The objection was sustained by the court, and to this decision the counsel for the defendants excepted. The following question was then put:
    Q. Do you belong to any order!
    This question was objected to by the people. The objection was sustained, and to which decision the defendants excepted.
    N. Bowditch Blunt (District Attorney) for the people.

      John McKeon for the defendant
   By the Court, Morris, J.

At the foundation of American jurisprudence, is the right to be tried by an impartial, unprejudiced jury, it is a right paramount to all others, and is not to be sacrificed to the fear or apprehension of wounding the feelings of others.

In this case, a new trial should be ordered for the following errors:

1st. The juror, Carson, should have been received as a witness to prove that he had formed or expressed an opinion of the guilt of the prisoners, or of some of therm

The juror who has formed an opinion and has not expressed it, is the only source from which the fact of the “ formed opinion ” can be obtained. There is neither dishonor or disgrace attached to the fact, that a man had formed an opinion upon any subject which agitated public consideration, and there is no reason why the juror should not be used as a witness, to prove the cause of challenge.

The prosecution at the trial did not object that the challenge assigned against this juror, should not have been for principal cause, but to the favor, and, therefore, he can not take such position here. '

2d. Under the admissions of facts made by the counsel as the foundation of challenge, the court erred in refusing to compel the juror, Black, to answer the question, whether b$ had any prejudice or b.ias against Roman Catholics.”

This question should have been permitted.

3d. The question to the witness West, whether he belonged to the Order of United Americans,” should have been permitted by the court; for had it, by the witness, been shown that he did, and that such order was established with prejudice against, and to oppose Irish and Roman Catholics, such fact was proper for the jury to receive, to enable them to determine how much, if any, the witness’s evidence was warped by the principles of his order.

Proceedings reversed


author: By the Court, James, J.

text:
    Supreme Court. Essex General Term,
    July, 1855.

      C. L. Allen, Bockes and James, Justices.
    Obadiah Osborne pl’ff in error vs. The People def’ts in error.
    On a trial for burglary, it is no valid objection to evidence tending to characterize the burglarious intent of the acts charged, that the circumstances , offered to be proved, would, upon the trial of another and distinct offence, tend to convict the prisoner of such latter charge; but the intent with which the prisoner entered may be determined by proof of circumstances tending to show a felony committed in an adjoining store.
    Writ of error to the Saratoga county Sessions. The plaintiff in error was indicted with two others for burglary, in breaking and entering the grocery of one Hall in the night time with intent, &c. He was tried on the indictment at the Saratoga Sessions held in March last, and convicted.
    The grocery of Hall, together with the shoe store of one Van Epps, were in the same building, each having a separate front door, and in no wise connected except that in the rear there was a passage way common to both. On the trial Van Epps was sworn as a witness, and during his examination was asked if he missed any boots from his store on the night of the alleged burglary. The question was objected to by the counsel for the prisoner, as irrelevant and improper. The objection was overruled and the prisoner excepted. The witness answered: “I am certain I missed two pairs of boots, if not more; they were missing next morning; I saw them afterwards.” The counsel for prisoner objected to .the witness stating where he saw said boots “ as irrelevant and improper evidence; that if the boots were taken on the night in question and subsequently found at a place that' might lead the jury to believe the prisoner took them, it was not legal and proper evidence on the trial of this indictment.” The court overruled the objection, and the prisoner excepted. The witness answered: “I saw those boots the next day at the house of the father of prisoner; they were pulled from under the buttery floor.” It further appeared in evidence that the prisoner at the time lived at home with his father, and was seen fo enter his father’s house about twelve o’clock on the night in question, procure a light, enter the buttery, remain a short time and retire. It also further appeared that the entrance to the grocery was effected by the prisoner and his associates by first entering the shop of Van Epps, passing through the same into the common passage way and from thence through a window into the grocery.

      D. Wright, for the plaintiff in error.

      W. T. Odell, (Dist. Att’y,) for the defendants in error.
   By the Court, James, J.

The counsel for the prisoner insists that the Court of Sessions erred in allowing, as evidence to characterize the intent of the acts charged as burglary in this indictment, proof of circumstances which upon a trial for another and distinct offence would tend to convict the prisoner of such latter charge; or in other words, that the intent with which the prisoner entered" the grocery of Hall, should not be determined by proof of circumstances tending to show a felony committed in the store of Van Epps.

It" is not to be- disputed, that as a general rule both in civil and' criminal cases, the evidence should be confined to the point in issue; and Phillips, in his treatise on evidence say.* “ In criminal proceedings the necessity for strictly enforcing this rule is stronger than in civil cases, for when a prisoner is charged with an offence it is of the utmost importance to him that the facts laid before the jury should consist exclusively of the transaction which forms the subject of the indictment, which alone he can be expected to come prepared to answer.” (1 Phil. Ev, 178.) Under this rule it would not be competent for the prosecution on the trial of a prisoner for an offence to give in evidence facts or circumstances tending to show the commission of another separate and distinct felony, for the purpose of raising an inference that the prisoner was guilty of the crime for which he was on trial.” (Ros. Cr. Ev. 73.) But to this general rule there are many exceptions. For the purpose of identifying the person charged as the criminal, the prosecution has been allowed to show that other goods than those mentioned in the indictment, upon an adjoining part of the premises were stolen the same night, and afterwards found in the prisoner’s possession. So where a man committed three burglaries in one night, and stole a shirt at one place and left it' at another, they were all so connected that the court heard the history of the three burglaries. (2 Leach, 285.) And all facts upon which any reasonable presumption or inference can be founded .as to the truth or falsity of the issue, are admissible in evidence. (6 Verm. 496; 2 Gill & John. 267.) Still facts and circumstances, tending to establish a separate and distinct felony from the one charged in the indictment on trial, .are not within the exception to the above mentioned general rule, unless so connected as to form a part of the same general transaction. Of such character were the facts and circumstances objected and admitted in evidence on the trial of this case. The acts of the prisoner and his associates while in the grocery of Hall, rendered it somewhat doubtful whether the entry was a burglary or a trespass; hence the necessity of proof to show the intent. The entry of store and grocery must be regarded as one connected transaction; and therefore proof of any facts and circumstancess tending to show the prisoner guilty of larceny in the store of Van Epps on that occasion, was proper evidence to go to the jury to characterize the intent with which I he prisoner broke and entered the grocery for which he stood indicted.

The ruling of the Court of Sessions was correct and a new trial is denied.


text:
    Supreme Court. St. Lawrence General Term,
    September, 1855.

      C. L. Allen, Bockes and James, Justices.
    The People vs. James Caniff.
    Under the statutes of the state of New York, the people, in a criminal prosecution, are entitled to two peremptory challenges.
    On the trial of an indictment for burglary, it is not sufficient to prove that the goods of the prosecutor alleged to have been burglariously taken from his barn, were carried away from the bam in the night by the defendant, and were subsequently found in his possession ; but the prosecutor must also prove that the barn was broken open and the goods stolen. Such facts should be proved by the testimony of the person in the immediate possession of the bam and the goods; or a satisfactory excuse should be given why he is not called as a witness!
    The prisoner was indicted at the Saratoga Oyer and Termi-' ner, held in October, 1853, for burglary in the third degree, and the indictment sent down to the General Sessions for trial. On the trial in the Sessions, the clerk in impanneling the jury drew from the box the name of Thomas L. Gleason, who answered to the call. To this person sitting as a juryman, the district attorney on behalf of the prosecution interposed a peremptory challenge. The counsel for the prisoner denied the right of the people to such challenge. The court held that under the statute as they now stood, the people tvere entitled to two peremptory challenges!, and set the juryman aside. To which ruling and decision the counsel - for the prisoner duly excepted. The charge against the prisoner was, that he had burglariously broke and entered the barn of one Benjamin Wood, on the night of June 11, 1853, and taken and carried away therefrom, twelve fleeces of wool, the property of said Wood. A son of the said Wood testified, that on the night in question, thirty-seven fleeces of wool belonging to his father were put into his father’s barn; that the barn stood beside the road, the front doors being fastened on the inside, and the back door by a staple and pin on the outside; that about sunrise, on the morning of the 12th of June, the back door of the bam was, found open and twelve fleeces of the wool were gone; that there were tracks of a double horse team and wagon in front of the barn, and also those of a mare about the barn; that the off horse of the team had large feet and was shod; the near horse had small feet and was not shod. It also appeared in proof that prisoner drove a team answering such description, and was seen with it on the night in question in the vicinity of the barn. Twelve fleeces of wool, recognized to be those taken from the barn, were subsequently found on the lands of the prisoner, secreted in some elder bushes. Benjamin Wood, although about home at the time of the alleged burglary, was not called as a witness to prove the larceny. The counsel for the prisoner requested the court to charge the jury that it was not proved that said Wood had had any wool stolen from his barn; the court refused so to charge and the counsel for the prisoner excepted. The jury found the prisoner guilty. The cause having been brought up by certiorari, the prisoner now moves upon exceptions for a reversal and a new trial

      W. T. Odell (District Attorney) for the people.

      D. Wright, for prisoner.
   By the Court, James, J.

This case presents but two questions for our consideration. The first is, whether the people in criminal cases have the right of peremptory challenge to a juror; and the second is, was there proof sufficient to show that the barn was entered with an intent to commit a crime.

The first question has been decided both ways by the Supreme Court. First in this district in the case of The Waterford and Whitehall Turnpike Co. v. The People, (9 Barb. 161,) where it was . held that the people had such right of challenge, and subsequently in the case of The People v. Henries, (1 Park. Cr. Rep. 579,) determined in the seventh district, where such right was denied. Without entering into any discussion of the questions, or in any wise expressing an opinion on the-reasoning advanced upon either side, we shall hold the question as res judicata in this district until overruled by the Court of Appeals.

Second. It will be observed that the proof, to establish that a crime had been committed, and to convict the -prisoner with such offence, was all circumstantial, and may all have been true, and the prisoner innocent of the crime charged. In every criminal case the prisoner’s guilt must be made out by evidence sufficiently- conclusive to exclude any reasonable supposition of his innocence. Proof that stolen goods were found upon the person of the prisoner, or in his house or possession, is presumptive evidence against him of having stolen them, and sufficient to call upon him to explain his possession, but before any such presumption can arise, the goods found upon the accused must be, shown to have been stolen. No presumption of guilt can arise from the bare possession of property, and no man is called upon to explain , his possession of property until-it is proved that .it was stolen. (Russell on Crimes, 1153; Cow. & Hill’s' notes, p. 423 n.. 325.) This proof should be by the owner of the property himself, if it was taken from his immediate possession, (Murray’s Case, N. Y. Gen. Ses. 6, C. H. Rec. 65, 66.) In this case, the wool was sufficiently identified, and the circumstances under which it was found, together with the tracks of the horses, and the prisoner’s whereabouts on the night in question, were amply sufficient to justify the jury in,finding that the accused was. the person who carried the wool from the barn. But the necessary evidence to show that the barn was broken open and the wool stolen therefrom, was wanting. The barn and wool being in the immediate 'possession of Benjamin Wood, he was the only person who could testify directly to the burglary or larceny. He may have opened the barn and delivered the property himself, or consented to the prisoner’s opening the barn and removing the wool. In either case, no crime was committed. Wood should have been called as a witness, or some satisfactory excuse rendered why he was not. It is a general rule that the .best evidence of which the case is susceptible should be produced, and the court will not, in criminal cases, permit the prosecutor “ to grope in the twilight of circumstantial evidence, when the broad day light of direct and positive proof is attainable.”

The second point was well taken, and for that reason the conviction must be reversed and a new trial ordered


author: By the Court, C. L. Allen, J.

text:
    Supreme Court. Essex General Term.
    July, 1855.

      C. L. Allen, James and Bockes, Justices.
    The People vs. Alexander Merrill and Joseph Russell.
    A state has no jurisdiction of crimes committed beyond its territorial limits. Every statute is presumed to be enacted with reference to the local jurisdiction of the legislature of each state.
    Section 32 of 2 R. S. 665, which provides for the punishment, as for a felony, of every person who shall sell, or in any manner transfer, for any term, the services or labor of any black, mulatto or other person of color, who shall have been forcibly taken, inveigled or kidnapped from this state to any other state, place or country is not applicable to a sale or transfer made in another state of a black inveigled in this state.
    To give to it a broader construction, and make it applicable to a sale or transfer made in another state, would make it repugnant to the constitution of the United States, (amendment, art. 6) which delares that in criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed,- and also to art. 4, sec. 2 of the constitution of the United States, which declares that the citizens of each state shall be entitled to all the immunities of the citizens of the several states; and provides that a person charged in any state with treason, or felony, or other crime, who shall flee from justice, or shall be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime.
    Forms of an indictment for kidnapping, with intent to sell, under sec. 28 of 2 R. S. 664 and of an indictment for inveigling a person of color and selling liim as a slave under section 32,—and of demurrer and joinder in demurrer.
    This was a writ of error to the Saratoga Oyer and Terminer, in which court the defendants were tried on the following indictment:
    Saratoga County, ss. Be it remembered: That at a court of General Sessions, holden at the court house, in the village of Ballston Spa, in and for the county of Saratoga, on the 28th day of August, 1854, before John A. Corey, county judge of the county of Saratoga, David Maxwell and Abram Sickler, justices of the peace for sessions, in and for said county, and James W. Horton, clerk:
    It is presented upon the oaths of the jurors, of the people of the state of New York, in and for the body of the county aforesaid, good and lawful men of the county aforesaid, then and there sworn and charged to inquire for the said people, for the body of the county aforesaid:—
    First.—That Alexander Merrill and Joseph Russell, late of the town of Saratoga Springs, in the - county of Saratoga aforesaid, on or about the tenth day of March, in the year of our Lord one thousand eight hundred and forty-one, with force and arms, at the said town of Saratoga Springs, in the county of Saratoga aforesaid, without lawful authority, one Solomon Northup, he, the said Solomon Northup, there living a free negro and a citizen of the state of New York, and in the peace of God and the people of said state, then and there being, did unlawfully -and feloniously inveigle and kidnap with intent, him, 'the said Samuel Northup, unlawfully and feloniously against his will and without his consent, to-cause to be sold as a slave. And him, the said Solomon Northup, unlawfully and feloniously and against his will,"did sell as a slave, against the statute in such case made and provided, and against the peace of the people of the state of New York, and their dignity, and the jurors aforesaid, upon their oaths'aforesaid, do further present: that from the time the said Alexander Merrill and Joseph Russell, had so inveigled and kidnapped the said Solomon Northup, to wit: the , tenth day of March, 1841, during and "until the first day of July, 1854, they, the said Alexander Mérrill and Joseph Russell, have not been the inhabitants of the state of New York.
    Second.—And the jurors aforesaid, upon their oaths aforesaid, do further present:
    That the said Alexander Merrill and Joseph Russell, late of the town of "Saratoga Spring in the county of Saratoga aforesaid, afterwards, to wit: on the said tenth day of March, in the year of our Lord one thousand eight -hundred and forty-one, with force and arms, at the said town of Saratoga Springs, in the county of Saratoga aforesaid, without lawful authority, one Solomon Northup, he, the said Solomon Northup, .then being a free negro and a.citizen of the state 6f New York, and in the peace of God and of the people of the said state, then and there being, did unlawfully and feloniously inveigle to accompany them, the said Alexander Merrill and Joseph Russell, to the District of Columbia, with intent unlawfully and feloniously to cause the said Solomon Northup to be sold as a slave; and him, the said Solomon Northup, did then and there without his consent sell as a slave, to the great damage of the said-Solomon Northup, against the statute in such case made and provided, and against the peace of the people of the state of New York and their dignity.
    And the jurors aforesaid, upon their oaths aforesaid, do further present:
    That from the time the said Alexander Merrill .and -Joseph Russell had inveigled the said Solomon Northup, and him, the said Solomon Northup, sold as a slave aforesaid, to -wit: the tenth day of March, 1841, during and until the -first-day of July, 1854, they, the said Alexander Merrill and Joseph Russell, were not usually resident within the state of New York.
    Third.—And the jurors aforesaid, upon their oaths aforesaid, do further present:
    That heretofore, to wit: on the tenth day of March, in the year of bur Lord one thousand eight hundred and forty-one, at the town of Saratoga Springs, in the county of Saratoga aforesaid, one Solomon Northup, who was then a free negro and an inhabitant of the state-.of New York, was unlawfully and feloniously and without lawful authority, inveigled from this state to the city of Washington, in the district of Columbia, by-the above mentioned Alexander Merrill and Joseph Russéll. That the said Alexander Merrill and Joseph Russell, late of the said town of Saratoga Springs, in the said county of Saratoga, afterwards, to wit: on or about the first day of January,-in the year of our Lord one thousand eight hundred and fifty-three, with force and arms, at the said city of Washington, unlawfully and feloniously sold and transferred the services and labor convicted of of the said Solomon Northup, without his consent, to some person or persons to the jurors aforesaid unknown, for a term to the jurors aforesaid unknown, to the great damage of the said Solomon Northup, and against the statute in. such case made and provided, and against the peace of the people of the state of New York, and their dignity.
    Fourth.—And the jurors aforesaid, upon their oaths aforesaid, do further present:
    That Alexander Merrill and Joseph Russell, late of the town of Saratoga Springs, in the county of Saratoga aforesaid, afterwards, to wit: on or about the first day of January, in the year of our Lord one thousand eight hundred and fifty-three, with force and arms, at the said town of Saratoga Springs, in the county of Saratoga aforesaid, without lawful authority, one Solomon Northup, then being a free negro and an inhabitant of the state of New York, and in the peace of God andbf the people of the state of New York, then and there being, did unlawfully and feloniously inveigle from the state of New York to the city of Washington, in the District of Columbia, with intent, then and there, to cause the said Solomon Northup to be sold as a slave. And the said Alexander Merrill and Joseph Russell, him, the said Solomon Northup, did, then and there, with force and arms, unlawfully and feloniously sell as a slave to some person or persons to the jurors aforesaid unknown, to the great damage of him, the said Solomon Northup; against the statute in such case made and provided, and against the peace of the people of the state of New York, and their dignity.
    To the first count the defendants pleaded not guilty.
    To the second count the defendants demurred as follows: And the said Alexander Merrill and Joseph Russell in their own proper persons, come into court here, having heard the second count of the said indictment read and say:
    That the said count and the matters therein contained, in manner and form as the same are above stated and set forth, are not sufficient in law, and that the said Alexander Merrill and Joseph Russell are not bound by the law of the land to answer the.same, and this they are ready to verify; wherefore, for want of a sufficient indictment in this behalf, the said Alexander Merrill and Joseph Russell pray judgment, and that by the court they may be 'dismissed and discharged from the said premises in the said second count specified.”
    Similar demurrers were interposed to the third and fourth counts. The public prosecutor joined in demurrer as follows;
    And William T. Odell, district attorney of Saratoga county, who prosecutes for the people of the state of New York in this behalf, saith:

      “ That the said second count in the said indictment, and the matters therein contained in manner and form as the same are above stated and set forth, are sufficient in- law to compel the said Alexander Merrill and Joseph Russell to answer the same; and the said William T. Odell, who prosecutes as aforesaid, is ready to verify and prove the same as the court here shall direct and award; therefore, inasmuch as the said Alexander Merrill and Joseph Russell have not answered to the said count in the said indictment, nor hitherto in any manner denied the same, the said William T. Odell, for the said people, prays judgment on the said count, and that the said Alexander-.Merrill and Joseph Russell may be convicted • of the premises in the said count specified.”
    Similar joinders were put in to the other demurrers. - Judgment upon the demurrers to the second, third and fourth counts was given for the defendants, whereupon a writ of error was prosecuted by the district attorney to this court.

      W. T. Odell (District Attorney) for the people.

      Beach, Cochrane and Wait, for defendants.
   By the Court, C. L. Allen, J.

There is no objection to the count under the thirtieth section, and to this count the defendants pleaded not guilty. That section enacts, that any person the felony there declared, shall, upon conviction, be puyislied by imprisonment in a state prison not exceeding ten years. The offence there created and declared, is one arising upon the intent of the party formed in this state, and which constitutes the crime committed within the state, and to punish which, on conviction, the tribunals of the state have exclusive and perfect jurisdiction. The duelling act, so called, (2 R. $. 686,) provides for the punishment of those who shall thereafter fight a duel within the state, declaring the offence to be a felony; and then follows the fifth section against the same act, declaring, that if any inhabitant of the state shall leave the same for the purpose of eluding the operation of its provisions, with the intent of giving or receiving any challenge therein prohibited, or of aiding or abetting in giving or receiving such challenge, and shall give or receive any such challenge or shall aid or abet in giving and receiving the same without the state, he shall be deemed as guilty, and shall be subject to the like punishment as if the offence had been committed within this state. Here, again, the intent conceived in this state, was made to constitute the crime, the giving and receiving the challenge without the state being made evidence of such intent;—and the concluding part of the section declaring that the punishment, upon conviction of such intent, shall be the same as if the offence had been committed within the state, was a legislative construction or adjudication, if proper so to speak, that if the act were committed without the state, unaccompa^ nied by the intent conceived by the inhabitant of the state before leaving it, our courts would have no jurisdiction over it.

But the thirty-fourth section of the act under which the objectionable counts in this case were framed, is somewhat broader in its terms as to assertion of jurisdiction than the section of the duelling act just adverted to. It declares that “ every person who shall sell, or in any manner transfer, for any term, the services or labor of any black, mulatto, or other person of color, who shall have been forcibly taken, inveigled or kidnapped from this state, to any other state, place or country, shall, upon conviction, be punished by imprisonment in a state prison not exceeding ten years, or in a county jail not exceeding one year, or by a fine not exceeding $1,000, or by both such fine or imprisonment.”

It must be presumed, in construing this section, that the intention of the legislature was to confine the courts of the state, to the offences or felonies over which it had jurisdiction, and to .them alone. It can not be pretended or assumed that a state has jurisdiction over crimes committed beyond its territorial limits. The first section of the 2 R. S., 697, (4 ed. 881,) declares that the several courts of justice organized under the constitution and laws of this state, possess the sole and exclusive jurisdiction of trying and punishing in the manner prescribed by law, all persons for offences and crimes committed within the boundaries of this state, and excepting only such as are exclusively cognizable by the courts deriving their jurisdiction under the laws and constitution of the United States. This enactment is in conformity to the law as always understood from the earliest period. (Vattel’s Law of Nations, 108, Story’s Conflict of Laws, 516,518, 619, et seq.)

It was early adjudicated that our courts had no jurisdiction over offences committed in other states. In the case of The People v. Wrights, (2 Caines’ R., 213,) the defendants were in custody of the sheriff on heavy civil process, and while thus in custody a warrant was issued upon an indictment against them found in Massachusetts for a crime committed there. The court refused to comit them, saying they had no jurisdiction — and that the constitution pointed out the mode by which offenders could be claimed by a foreign state. The case of The People v. Gardiner, (2 J. R., 477,) was one where the prisoner was indicted and convicted of felony at the General Sessions, in Washington county, for stealing a horse. It turned out in evidence that the original taking was in Vermont, but that the prisoner was arrested in Washington county with the horse in his possession. The court decided that the prisoner could not be tried for the offence in this state, the original taking having been without its jurisdiction, and that the offence did not continue and accompany the possession of the thing stolen, as it did when property was stolen in one county in the state, and the thief was found in another county with the stolen property in his possession. In The People v. Schenck (2 J. R., 479,) the prisoner was discharged because it turned out that the gun, which he was charged with stealing, was taken in New Jersey, and brought into New York, and there offered for sale by him. But the court caused him to be detained in custody for thirteen weeks to enable the executive of New Jersey to apply for his delivery to the proper' officers of that state, It is not improbable that these decisions, particularly the two latter, somewhat aided in the enactment, (2 R. S., 698, § 4,) by which it is declared that “ every person who shall feloniously steal the property of another, in any other state or country, and shall bring the same into this state, may be convicted and punished in the same manner as if such larceny had been committed in this state;” and in every such case, such larceny may be charged to have been committed in any town or city into, or through which, such stolen property shall have been brought.”

The case of the People agt. Burke, (11 Wend. 129,) was decided after the passage of this section. It appeared in evidence in that case, that the prisoner, who was indicted for grand larceny, and charged with having stolen money'in the town of Gates, in the county of Monroe, stole the money in Upper Canada and came into Gates, where a part of the stolen money was found in his possession. The case, as was correctly remarked by the Chief Justice, Savage, came precisely within the statute, which was, in his opinion, constitutional, and was not justly liable to the objection, that the legislature undertook to punish offences committed against another' government. Why! Because it was not the larceny in Canada which the court of this state undertook to punish, but that committed in the state of New York, in every place into which the stolen property had been brought. That the statute was only recognizing the common law, (Sec. 1, Ch. Crim. Law, p. 179; 13 Coke, 53,) by which the possession of stolen property, in contemplation of law, remains in the owner, and the thief is guilty of theft in every place into which he carries the stolen goods.

The offence is committed in this state by bringing the stolen property into it; “ for being in possession of the stolen property;” animo furandi. The statute was likened to that for punishihg persons having in their possession forged bank notes. “ No one ever doubted,” remarks the learned judge, the propriety of a conviction if it appeared (as it generally does in such cases,) that the notes were actually forged in Canada. The offence is complete in "this state by having them in possession with intent to pass them.” So in the statute we are now considering, inveigling or enticing a colored man, in this state, out of its limits, with intent to sell him, constitutes the crime here, as before intimated.

The doctrine that a person can not be punished for a crime committed without the state, is not only not denied, but broadly admitted in the case in 11 Wend., as it was also in the cases of the People agt. Sturdevant, (23 Wend. 418,) and the People agt. Charles, (3 Denio, 212.) In both those cases the offence was complete by the publication of, or the sale of lottery tickets, in this state, though the lotteries in which they were sold, were authorized by the laws of other states.

The case also of the People agt. Adams, (3 Denio, 190,) affirms the same principles. The defendant was a resident of the state of Ohio, and in that state made and executed the false receipts and drafts by which the money was fraudulently, and by false pretences, obtained from the house in New York, the papers having been presented to the firm in New York by agents of the defendant, he having remained during the transaction in the state of Ohio.

The court held that the offence was committed where the false pretence was used, and where the mtfney was obtained; and Beardsley, J., after a very able review of all the cases bearing upon the question, remarked, in delivering the opinion of the court, that the crime was committed in the city of New York, and not elsewhere; that the defendant, although acting through his innocent agents there, and not personally present within this state, was here in purpose and design, and acted by those agents; “ qui facit pet alium faeit per se.” That the crime was perpetrated within this state, and that, therefore, our courts had an undoubted jurisdiction; that jurisdiction over the criminal necessarily folio-wed, “ crimen trahit personam,” and the offender should be held responsible when afterwards found within the state; and the conclusion arrived at finally, was that, although civil redress for this violation of a statute of our state would be afforded by the courts of Ohio, as well as New York, yet that the law of this state creating the offence for which the defendant was indicted, could only be enforced by its own tribunals. The judgment in this case was affirmed by the Court of Appeals, (1 Comsf. R. 173.) The court there reiterating the averment that the crime was committed within the state, and through the instrumentality of the defendant though absent from it, and a resident of another state at the time. One of the court remarked, that it was a matter of little consequence under the circumstances'of the case, whether the defendant owed allegiance to the state or not; that there were only two cases where the question of allegiance could have any thing to do with the criminal prosecution, one was, where the accused was charged with a breach of the duty of allegiance, as in cases of treason; and the other was, where the government purposes to punish offences committed by its own citizens, beyond the territorial limits of the state, almost exactly defining and deciding, in my judgment, the question in the case now under consideration. The same doctiine is recognized in Massachusetts, as well as in this state. (2 Mass. R, 132, 134; 13 Mass. 4,) and also in Pennsylvania, (5 Bin. 617.)

Thus it will be seen, that the several cases above referred to, uniformly agree, that the several offences considered in them were committed in this state, and that therefore, our courts had jurisdiction over them, and over the persons committing them, when found within the state; and that they all admit, that the courts could have had no jurisdiction, if those offences had been perpetrated without the limits of the state. “ The different states,” it has been truly remarked, by an eminent judge, are altogether as independent of each other, in point of jurisdiction, as any two nations,” and an offence committed in one state, can not be tried in another.

The precedents and authorities in England, cited by the counsel 'for the prosecution, all grew out of special statutes of that realm. As has been already remarked, by the common law, offences were local, and could only be tried in the county where committed. (See 1 Ch. Crim. Law, 150, 177, 179.) The several acts of parliament are there cited and commented upon which provide for the trial in one county of certain offences committed -in another. Under the statute of 33 Henry VIH, c. 23, arose the case of JYey agt. Sawyer, (61 c. L. R. 100,) cited by the counsel on both sides, on the argument of this demurrer; it was held in that case that a British subject was triable in that country for the murder of another British subject, committed on land within the -territory of a foreign independent kingdom. The argument in that case, in support of the jurisdiction was the same that is urged here; that there is a mutual contract between the government and its citizens; that the citizen is bound to yield obedience to the laws, and that the government is bound to protect the citizen, and the additional argument in the case in England, was derived from the preamble of the act of Henry VIII, that persons guilty of murder or man slaughter, committed out of the realm, and not upon the high seas, might, without the remedy afforded by the act, escape punishment. It is to be observed, in passing, that the statute under which this conviction was had, was repealed by that of 9 Geo. IV, c. 31, and other provisions instituted in its stead. The counsel for the people in this case, while he admits that a similar jurisdiction to that which he claims here, was derived in England by special statute, contends that our statute is sufficiently broad to sustain the counts demurred to.

I have already intimated that every statute is presumed to be enacted with reference to the local jurisdiction of the legislature of each state. The section is very general.

Every person who shall sell or in any manner transfer the services of any black, who shall have leen forcibly taken, inveigled or kidnapped from this state to any other state, place or country, shall, upon conviction, he punished.” It does not confine the offence to persons who shall be residents of the state at the time of the perpetration of it, nor does it confine its commission against citizens of the state alone, for the protection of which it is supposed to be intended to provide. The phraseology, however, is like that of most, if not all the other sections and statutes in relation to crimes and misdemeanors. For instance, the 29th section of the act, (2 R. S. 664,) to punish for mayhem, uses the same general language, when it declares that every person, who from premeditated design, shall cut off or disable any limb or member, shall, upon conviction, be punished by imprisonment in a state prison; and so the statutes respecting murder and manslaughter, and the accessories thereto, are equally general in their phraseology. Yet no one can contend that a citizen of this state, who is guilty of the murder of another citizen in the state of New Jersey, can be tried for that crime in this state. The district attorney has indeed put forth the averment, that if an alien should be guilty of mayhem upon a citizen of the state, beyond its territorial limits, and the courts had obtained jurisdiction of his person, by his voluntarily coming within the state, he could be tried and punished; but -the authority which he cites (Story’s Conflict of Laws, § 5, p. 625, 626) does not support his position. Story remarks, in a note to one of the sections quoted, that “ the more common usage in modern times is to remand the criminal to the country or state where the crime was committed, the practice of most countries being to surrender up fugitives from justice, who escape into their territories, and seek an asylum from punishment.” It may, therefore, be argued that the section is to be limited in its application to a sale within the state, and the description “ who shall have been forcibly taken,” &c., is referable to the time of indictment and trial, and not to the time of sale; and that the offence probably aimed at by the legislature, was a sale within the state, with intent forcibly to remove; and it might refer to removing and selling afterwards. At all events, whatever may have been the doctrine in England, under their special statutes, our courts are governed by t)ie common law in our' own state, and by comparing all those statutes together, it is evident that their jurisdiction is limited to offences within the state; (2 R. S., 4th ed., p. 881; 1 Kent Com., note R) and the cases cited and commented on above, show what offences shall be considered as having been committed in the state, and do not include the one embraced in the counts demurred to in this case.

It is argued that there is an obvious necessity for the power of the state to pass the section which it is insisted supports these counts. That the state can not protect its citizens without it; that the state must have such power and right. To this, it may be answered:

First. That this state, as a sovereign and independent member of the confederacy, can not protect its citizens beyond its own territorial limits.

Suppose a citizen is imprisoned in Europe, or in Cuba, to whom is he to apply for protection! Undoubtedly to the general government The right to arrest and try offences out of the state, is founded upon its duty and power to protect; and it can not protect beyond its boundaries. The doctrine, therefore, can hardly be said to apply to the individual states, but to the government of the union. If an individual passes the boundaries of his own state, and enters another, he retains his rights and high character as an American citizen, but he subjects, himself, at the same time, to the laws of the- state to Which he removes or in which he abides. The great inquiry when the general government interferes in behalf of this citizen, is whether his personal rights have been violated, and whether he has or not, committed an offence against the laws of the government which is assuming to punish him. If he has, he is left subject to the laws, and can obtain no further redress.

Jigain, this argument may be answered, secondly, by remark* ing that the section is general, and not confined to the punishment of or protection of residents within the state. It embraces every person who shall sell any black, who may have been forcibly taken or inveigled from the state, by another, without the knowledge of the seller, who may be doing an act entirely consistent with and in obedience to the laws of the state in which he makes the sale. • This could never be tolerated, and was never intended. The conclusion is this, that the legislature intended to provide against kidnapping; that they created an offence cognizable by the laws, when they enacted the 31st section, decláring that if any person should inveigle a person of color out of the state with intent to sell and dispose of him as a slave, it should be a felony. The actual sale, or attempt to sell,- out of the state, would undoubtedly be evidence of the felonious intent, and would in all courts be so received; conviction would probably follow, and the whole object of the statute be fully answered by the infliction of deserved punishment upon the culprit.

Second. But whatever construction we give to this statute, and if it is indeed to be considered as broad and comprehensive in its terms, as is -contended for by the counsel for the people, it is then, in my judgment, repugnant to the constitution of the United States. The 6th article of the amendments to that instrument, declares that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury, of the state and district wherein the crime shall have been committed.

The penal acts of one state can have no operation in another state. The courts of this state, have no power to enforce here the criminal laws of another state. Here, laws are local, and affect nothing more than they can reach. (Story’s Conflict of Laws, 516, 517; Sears, 619, 620, 621; 14 J. R. 338, 340; Tayrlor N. C. R. 65.)

It is also not in accordance with the 2d section of the 4th article of the same constitution. That declares that the citizens of each shall be entitled to all the immunities of the citizens in the several states, and provides that a person charged in any state with treason or felony or other crime, who shall flee from justice, or shall be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime. The third and fourth counts of the indictment charge substantially that Northup, on the 10th day of March, 1841, was a free negro, and inhabitant of the state of New York; that he was on that day, unlawfully and feloniously, and without lawful authority, inveigled from this state to the city of Washington, in the District of Columbia, by the defendants, and "that they, on the first day of January, 1853, at the city of Washington, unlawfully and feloniously sold him as a slave. Now the act of selling was a lawful one in the District of Columbia, for congress, though often invoked so to do, have not assumed to prohibit the sale of slaves in that district. The defendants therefore had the right to sell, by the laws of the district, and for that act alone were not punishable there. Suppose any other person, who had not participated" at all in enticing Northup from this state, had found him at Washington, and claimed and sold him there, could he have been indicted and tried here, if caught, for such- sale? Undoubtedly not. And yet the section, if the construction is given to it which is contended for here, includes just such a case. Could such a person when indicted, have been demanded here as a fugitive from justice, under the 2d subdivision of article four? There is but one reply, it appears to me, that can properly be given to these questions. It is no answer to say that the persons selling were guilty of inveigling or kidnapping; that is another distinct offence, and is provided for by the 30th section.

The inveigling with intent to sell there constitutes the crime, and is properly and clearly punishable as already shown. It is the sale alone, for which the defendants are indicted, under the counts we are now considering, and that sale in a district where it was perfectly lawful.

It can not be said that the constitution of the United States is not operative upon a case of this character. It is the supreme law of the land, and binding upon all states and upon all state courts. It is insisted that the state is an independent sovereignty in every thing except what is granted to the United States by the articles of confederation, and provided for by the constitution. This may be conceded, and yet that instrument may be binding in this particular case; our statute coming in conflict with two of its particular provisions. The constitution was intended to be binding, as it regards the .rights of the citizens of the several states, upon the people of the whole union. It was never intended that a legislature should violate state comity, or national rights, as the section in question does, by assuming to punish as a felony, a sale of property in a state or district where the right exists, by the laws of the locality, to make such sale; and when the seller may have no knowledge whatever of the forcible abduction from the state which claims to punish him.

It can not be seriously, at all events, contended, in my judgment, that one selling a slave in a foreign state, where it is lawful, can be held criminally responsible for the act of another, in removing such slave from the state without any knowledge of such removal. “ Every man shall answer for his own sins,” is a correct maxim in morals, as well as law, and no legislative body possesses the power, in my judgment, to alter it.

I am happy, in thus feeling myself required to come to the conclusion that the judgment in this case must be affirmed, that the defendants, if guilty, are not to escape trial and conviction. The 30th section makes ample provision, within constitutional limits, for their punishment, and if convicted, under the first count, which is framed under that section, the whole object of the law will be answered, state sovereignty will be maintained, the rights of the citizens protected, and no principle will be violated.

No state can ask more than this, and no wise legislature will eve? be disposed to grant it.

Judgment of the Oyer and Terminer should be affirmed.