author: By the Court, Clerke, J.

text:
    Court of Appeals. Albany,
    December, 1860.

      Comstock, Selden, Denio, Davies, Clerke, Wright, Bacon and Welles, Judges.
    Charles M. Conkey and Walter Herrington, plaintiffs in error, v. The People, defendants in error.
    On the trial of an indictment for rape, after giving evidence of the commission of the offense, it is competent to prove acts of violence to property committed by the defendants in the same room and immediately after the alleged rape, for the purpose of characterizing the transaction.
    Where the husband of the prosecutrix was present at the commission of,,the alleged offense, and was also present, the next'moming, when she complained of her treatment to a third person, it was held that it was not erroneous to prove by the husband that he also had made, at the same time, a communication to such third person of what had happened, the details of such communication not having been given in evidence.
    Where a witness testified that he had heard three or four persons residing in an adjoining town, but not in the immediate neighborhood of the prosecutrix,
    , speak of her character for chastity, but did not know how she was generally regarded in the community, it was held that the witness was not competent to testify as to the general character of the prosecutrix for chastity.
    A witness called to impeach general character, must be able to state what is generally said of the pers'on by those among whom he dwells or with whom he is chiefly conversant.
    Where a witness testified that, he lived about a mile and a half from the prosecutrix, and said that "he did not know as he had the means of knowing about her character," but afterward said “he thought he was prepared to Judge,” it was held not to be erroneous for him further to answer, that he considered her general character good, it appearing that the defendants’ counsel did not cross-examine him as to the grounds upon which, after first hesitating, he had stated he was prepared to testify.
    The indictment contained three counts: first, against both defendants for rape; second,"against 0. for rape, and H. for assisting him in committing it; third, against both prisoners for assault and battery, with intent to commit a rape. The jury returned tlie following verdict: “ They find the prisoners at the Toar guilty of the offense charged in the indictment.” It was held to be equivalent to a general verdict of guilty, and that upon it the court might properly pass judgment against the defendants on the count charging the highest grado of crime.
    An objection that the indictment appeared on its face to have been presented by twenty-four grand jurors, is not available bn error, where the defendants pleaded to the indictment, and proceeded to trial without objection in the court below.
    The plaintiffs in error were tried and convicted at the Otsego Oyer and Terminer in December, 1859, upon an indictment for rape,' and sentenced to the State prison at Auburn, for ten years and four months each. The indictment contained three counts: the first against both for a rape; the second against Conkey for the rape, and Herrington for directly inciting and assisting. Conkey in the commission thereof; and the third against both for assault and battery, with intent to commit rape. On the trial, the District Attorney called Anna Scott, the prosecutrix, and among other things, offered to prove by this witness, that at this time and after the commission of the offense charged in the indictment, the defendant Oonlcey committed certain trespasses upon the complainant, to wit: that he overturned the stove, threw some meat out of the window, breaking the glass, &c.; to which offer the defendants, by their counsel, objected, and also to all evidence upon that subject, upon the ground that no such offense was alleged in the indictment, and that the evidence was irrelevant, incompetent and immaterial, and was improper against Herrington. The court overruled defendants’ objection, and decided that the evidence was competent and proper, to which decision the defendants, by their counsel, excepted.
    Witness said: The defendant Conkey knocked a pot of meat off the stove, and threw the meat out of the window; he tipped over the stove and injured the teakettle. Conkey did this alone, Herrington setting on the bed; after Conkey began to carry on too bad, Herrington told him that that would not answer; that he was carrying on too bad; and began to pick up the meat and put it in the pot.

      The district attorney also put to this witness the following question: Did you and your husband go to Mew Berlin the next day to get a warrant ? The counsel for the defendants objected to this question,, as incompetent, irrelevant and immaterial. The court overruled the objection, and allowed the question to bei answered, to which decision defendants excepted.
    Witness said: I did go to Mew Berlin, and before Esq. Foote, the next day, to get a warrant.
    Question by the district attorney: Did you tell anybody of it before Foote ? Objected, upon the ground and for the reasons last above stated, which objections were overruled by the court, and the question allowed and the evidence admitted ; to which decision the defendants excepted.
    The witness said: Mr. Edwards came down Sunday morning to help put up the stove; I did not tell him all that was done"; I told him théy had abused me.

      Thomas Scott, the husband of the prosecutrix, was called as a witness by the district attorney, and, among other things, the district attorney made the same offer of proof in relation to what afterward occurred as is contained in the evidence of Anna Scott, and the prisoners, by their counsel, interposed the same .objections thereto, which were overruled by the court, and the evidence admitted, to1 which decision the defendants excepted.
    Witness said: After Conkey got off- the bed, he went to the stove and crushed the pot off, and threw two pieces of meat out of the window; he then threw out the griddle and broke out the window, sash and all.
    The district attorney also offered to prove by this"witness what he (witness) told and related to Harry Edwards, in relation to the transaction in the morning, to which defendant’s "counsel objected, upon the ground that the evidence is improper, irrelevant and immaterial, and because the defendants, or either of them, were not present, and upon the same grounds upon which similar evidence was objected to in the testimony of Anna Scott; the court overruled the objections and admitted the evidence, to which ruling and decision the defendants, by their counsel, excepted.
    . Witness said: I first told Harry Edwards of what had happened Sunday morning; I sent my boy after him; I did not tell him anything about Conkey getting on the bed, but my wife did; she said that they had abused her so that she could not help about putting up the stove.
    The defendants called Perry Medbury, who testified : I had heard of Mrs. Scott, previous to that; I am acquainted some in her neighborhood; I think I know how she is generally regarded in Hew Berlin by some of the people; I have heard some of the people in Hew Berlin, three or foúr, speak' of her character for chastity.

      Q. From the speech of people, is her character for chastity good or bad ?
    This question was objected to by the district attorney, and the evidence excluded, and the objection sustained by the court, to which ruling and decision defendants’ counsel excepted.
    The witness further said :• I don’t know how she is generally regarded in the community.

      Stephen P. Cady, a witness on the part of the People, testified : I reside one and a half miles from where Mrs. Scott lived a year ago; I am a farmer; I have known them part of the time since they lived in Pittsfield; I think Í have heard enough to form an opinion. Defendants’ counsel objected to this witness giving any opinion or testifying in relation to the character of Mrs. Scott, upon the ground that1 he has not shown himself competent to do so. The court overruled the objection, and permitted the witness to testify, to which decision the counsel for defendants excepted. Witness sayé: In my own mind, her character is good.

      Nehemiah Hill, Sworn, said: I live in Pittsfield, about one and half miles from Scott; did when this transaction happened; I don’t know as I have the means of knowing about her character for chastity; I think I am prepared to judge. Defendants’ counsel objected to this witness giving any opinion or testifying in relation to her character, upon the ground that he had not shown himself competent to do so. The court overruled said objection, and defendants’ counsel excepted. Witness said: I consider it good.
    The jury rendered the following verdict: “ That they find the prisoners at the bar guilty of the offense charged in the indictment.” The record of conviction recited that the indictment was found.by the oaths of twenty-four good and lawful men, the grand jury of the county of Otsego.
    The defendants removed the record and bill of exceptions into the Supreme Court .by writ of error, where the conviction was affirmed by that court at a general term, in the sixth district, held at Binghamton in July, 1860. The defendants sued out a writ of error to this court.

      B. F. Rexford, for plaintiffs in error.

      F. Countryman (District Attorney), for defendants in error.
   By the Court, Clerke, J.

The conduct of the prisoner, Con-key, immediately after the perpetration of the offense was properly admitted. It characterized the whole transaction, showing, or intending to show, that the carnal knowledge, which he had with the woman, was effected under circumstances of violence and threats, calculated to alarm and terrify her. The whole was one continuous act. Nothing is better established than that the prosecutrix, in trials of this nature, may testify as to what she did or said after the commission of the offense. In the language of Sir William Evans (2 Fv., Pothier, 289), Upon accusations for rape, where the forbearance to mention the circumstances for a considerable length of time is, in itself, a reason for imputing fabrication, unless repelled by other considerations, the disclosure made of the fact upon the first proper opportunity after its commission, and the apparent state of mind of the party who has suffered the injury, are always' regarded as very material; and the evidence of them is certainly admitted without objection.”

Ordinarily, doubtless, what a witness has said out of court cannot be received to fortify his testimony. The principal exception is stated in the above quotation. Thomas Scott, the husband of the woman on whom the offense had been committed, testified that he first told Edwards the next morning, relating no part of his story to Edwards, .and then corroborated the statement of his wife, that s/ie had complained to Edwards of the manner in which the defendants had abused her. Considering the relation he bore to the prosecutrix; that he was present when she made the disclosure to Edwards, and that he did not give the details of the conversation with the latter, his evidence on this point can scarcely be within the rule disallowing proof of declarations made.by a witness out of court, in corroboration of his main testimony at the'trial.

Undoubtedly, on the trial of a person charged with rape, the character of the prosecutrix for chastity may be impeached by general evidence. Medbury, a witness called for the defendants, testified that he had heard three or four people in ISTew Berlin speak of Mrs. Scott’s character for chastity, but did not pretend to know anything of what the people in her neighborhood said. Cady, a witness called on behalf of the people, and living in her neighborhood, testified that he had heard enough to form an opinion, and he knew the impression of the community was that her character was good.

The witness must be able to state what is generally said of the person by those among whom he dwells, or with whom he is chiefly conversant, for it is this only that constitutes general reputation or character. I think, therefore, that the testimony of Medbury was properly rejected, and that of Cady properly admitted.

Uehemiah Hill, living in the neighborhood of Scott and his wife, first said that he did not know that he had the means of knowing about her character for chastity, but soon after added, “I think I am prepared to judge,” and concluded by saying that he considered her character good. The defendants’ counsel did not cross-examine him relative to the grounds upon which, after first hesitating, he stated he was prepared to testify. We are not to presume that he was not prepared to judge, from, being convinced, on further consideration, that he had sufficient knowledge of her reputation among her neighbors. The jury, at the trial of the indictment, found the following verdict: “ That they find the prisoners at the bar guilty of the offense charged in the indictment.” The charges in the indictment are: 1st. Eape against Conkey and Herrington; 2d. Eape against Conkey, and against Herrington for assisting Conkey in committing a rape; 3d. Assault and battery against both Conkey and Herrington, with intent to commit rape. It is maintained by the counsel for the defendants that the jury have found the prisoners guilty of every one of these offenses, without specifying which, and, therefore, that the verdict is fatally defective. Although this is not the usual way of rendering a verdict in criminal cases, I can discover no substantial difference between it and the ordinary verdict of guilty. Like the ordinary form, it responds in general terms to the indictment, and this constitutes what is termed a general verdict. If the usual verdict of guilty was the form entered in this, case, it would not be pretended that the jury might have intended to find the prisoners guilty of the mere attempt at an offense. When a general verdict of guilty is rendered upon several counts in an indictment, relating to the same transaction, the practice is to pass judgment on the count charging the highest grade of offense. (Whart. Cr. Law, p. 1037, sec. 3048; Harmon v. The Commonwealth, 12 Serg. & Hawk, 191.) The verdict is to have a reasonable intendment, and it would be far from reasonable to say, if the jury intended to declare the prisoners guilty of only the inferior grade of the offense charged, that they have not said so, and would not specifically find them guilty of it. To relieve them from the consequences of the higher grade, the jury would unquestionably have employed language expressing that intention, and would have limited their finding to the inferior grade.

The indictment appears on its face to have been presented by the oaths of twenty-four good and lawful men, the grand jury of the county, although the statute provides “ there shall not be more than twenty-three, nor less than sixteen persons, sworn on any grand jury.” Ko indictment can be* found, without the concurrence of at least twelve grand jurors; thus requiring that at least a majority of the twenty-three should unite in the finding. In the present case, not only twelve, but twenty-three jurors, summoned as grand jurors, united in finding the indictment; the only error committed was, that one more added his suffrage to that of the necessary number. The defendants suffered no injustice from this; it was an imperfection in a matter of form, which did not tend to the -prejudice of the defendants; there was a concurrence in the indictment -of more.than the law requires. At all events, it is now too late to make the objection. The counsel for the defendants neglected to make it before the Court of Oyer and Terminer, and it is too late to set up the objection after conviction and sentence. (The People v. Griffin, 2 Barb. R., 427.) In King v. Marsh (1 Neville & Perry, 187; 6 Adolphus & Elis, 236; 2 Bennett & Heard's Leading Cr. Cases, 317), it was held that “ a grand jury ought not to consist of more than twenty-three persons. Where more than twenty-three persons are sworn and sit upon a grand jury, and a bill of indictment is found by them, to which the defendant pleads, and is tried and found guilty, the Court of King’s Bench will not, upon motion, quash the indictment. If more than twenty-three are sworn and sit upon the grand jury, the defendant, in an indictment found by them, may, if that fact appears upon the caption of the indictment, bring error in law. If it does not appear there, then he may bring error in fact.” See also People v. King (2 Caines R., 98). The error complained of does not amount to a nullity; it, at most, is an irregularity, not capable now of avoiding the conviction.

The judgment of the Supreme Court should be affirmed. As to the irregularity in the constitution of the grand jury, the court proceeded on the ground that the defendants waived it, by "pleading and proceeding to trial.

Judgment affirmed;


source: Caselaw Access Project

license: Public Domain

text:
    Supreme Court. Broome, General Term,
    November, 1860.
    Mason, Balcom, Campbell and Parker, Justices.
    Charles Nelson, plaintiff in error, v. The People, defendants in error.
    Where R. and B., two acting justices of the peace, were designated as members of the Court of Sessions of their county for the year 1860, but when so designated were not, within the requirement of the statute, “ entitled to serve as justices of the peace during such year by virtue of the election under which they were acting as such justices at the time of such designation,” it was held, that then- right to act as justices of the sessions could not be questioned on the trial of an indictment before such court, and that it could only be inquired into on a direct proceeding against them by information in the nature of a quo wa/rranto..

    The acts of public officers de fado, done cobre offidi, under an irregular election or appointment, are valid as respects the rights of third persons and so far as concerns the public.
    The public prosecutor may insert several counts in the game indictment alleging the offense distinctly and separately, in various ways, to meet the evidence^ and the court will not compel an election between them on the trial.
    When the jury render an imperfect verdict, the court'unay refuse to receive it, and direct them to retire and correct it, and may afterward receive the corrected verdict.
    On the trial of an indictment, under chapter l?4 of the Session Laws of 1854, it is not necessary for the prosecution to show with what weapon the assault was made or the injuries inflicted. It is sufficient to prove that a sha/rp, dangerous instrument was employed by the prisoner, and the jury have a right to infer such fact from the nature of the wounds.
    This was a writ of error to the Court of Sessions of Otsego county. It appeared by the return that the following indictment had been found against the prisoner:

      State of New York, Otsego County, ss:

    At a Court of Sessions, held at the court house, in the village of Cooperstown, in said county of Otsego, the 20th day óf February, in the year of our Lord one thousand eight hundred and sixty, before Levi C. Turner, Esq., county judge of the county of Otsego, John W. Richardson and Harvey W. Brown, Esquires, justices of the peace of the county of Otsego, duly designated as members of the Court of Sessions of the said county, all justices assigned to keep the peace in and for said county, and also to hear and determine divers felonies, trespasses and misdemeanors in said county committed, the jurors of the People of the State of New York, in and for the body of the county of Otsego, being then and there sworn, and charged on their oath,
    Present, That Charles Nelson, late of the town of Cherry Valley, in the county of Otsego, on the 26th day of December, 1859, at the town of Cherry Valley, in said county of Otsego, with force and arms, in and upon one Eichard Allanson, then and there being, feloniously did make an assault, and him, the said Eichard Allanson, with a certain knife which the said Charles Nelson, in his right hand, then and there had and held, the said knife being a deadly weapon, willfully, maliciously and feloniously, did beat, strike, cut and wound, with intent him, the said Eichard Allanson, then and there willfully and feloniously, to kill, and other wrongs to the said Eichard Allanson, then and there did to the great damage of the said Eichard Allanson against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity.

      Second count. Same, alleging the injury to have been done with a chair.

      Third count. Same, with a certain sharp, dangerous weapon, to the jurors unknown.

      Fourth count. With a certain sharp cutting instrument, to the jurors unknown, with intent to maim.

      Fifth count. Same, with a knife.
    The remaining counts were as follows:
    6. And the jurors aforesaid, upon their oaths aforesaid, do further present that the said Charles Nelson, at the town and county aforesaid, on the said 26th day of December, 1859, with force and arms, in and upon one Eichard Allanson, then and there being, feloniously did make an assault and him, the said Eichard Allanson, willfully and feloniously did beat, strike, wound and ill treat, with intent, him, the said Eichard Allan-son, willfully and feloniously to kill, to the .great damage of the said Richard Allanson, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity.
    7. And the jurors aforesaid, upon their oaths aforesaid, do further present, that the said Charles Nelson, at the town of Cherry Valley, in the county of Otsego aforesaid, ón the said 26th day of December, 1859, with intent, willfully, maliciously and feloniously to do bodily harm to one Richard Allanson, then and there being, and without justifiable or excusable cause in, and upon him, the said Richard Allanson, willfully and feloniously made an assault with a sharp, dangerous weapon, to wit: a certain knife which the said Charles Nelson, in his right hand, then and there had and held, and then and there other wrongs and injuries did to the said Richard Allanson, to the great damage of the said Richard Allanson, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity.
    8. And the jurors aforesaid, upon their oaths aforesaid, do further present, that the said Charles Nelson, on the day and year aforesaid, at the town and county aforesaid, with intent, willfully and feloniously to do bodily harm to one Richard Allanson, then and there being, and without justifiable or excusable cause in and upon him, the said Richard Allanson, willfully and feloniously made an assault with a certain sharp, dangerous weapon, to the said jurors unknown, which the said Charles Nelson then and there had and held, and other wrongs and outrages then and there did to the said Richard Allanson, to the great damage of the said Richard Allanson, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity.
    E. COUNTRYMAN, District Attorney.

    The case came on to be tried at the August term of the Court of Sessions, 1860, for Otsego county, before Hon. Levi C. Turner, county judge, and John W. Richardson and Harvey W. Brown, esquires, justices of the peace for said county, and designated as members of said Court of Sessions.

      E. Countryman (District Attorney), for the People.

      L. J. Walworth, L. I. Burditt and J. A. Lynes, for the prisoner.
    Before the jury had been called or sworn, the counsel for the defendant moved the court to quash the indictment, on the ground that the Court of Sessions; as constituted and organized, had no authority or jurisdiction to 'try the defendant; whereupon the following facts were stated by the justices of sessions, and conceded by the district attorney: The said Harvey W. Brown was duly elected a justice of the peace of the town of Maryland, in said county.of Otsego, in March, 1859, for a full term of four years, to commence January 1st, 1860. On .the 7th day of November, 1859, Lysander W. Kelly, who was then an acting justice of the peace of the said town of Maryland, having theretofore been duly elected to said office, resigned said office, and said Harvey W. Brown was, on the said 7th day of November, 1859, duly appointed to fill the vacancy occasioned by the said resignation of said Lysander W. Kelly, whose term of office expired on the 81st day of December, 1859 ; and the said Harvey W. Brown, on the said 7th day of November, 1859, thereupon qualified as justice of the peace under the appointment, and on the 3d day of December, 1859, duly qualified for the full term. • • .
    The said John W. Richardson was duly elected and qualified as a justice of the peace of the town of Burlington, in said county, in March, 1855; that his term of office expired the last day of December, 1859; and that in March, 1859, he was again duly elected as such justice of the peace for another full term, to commence the 1st day of January, 1860, and has been an acting' justice of the peace of said town since the 1st day of January, 1856.
    That on the 8th day of November, 1859, the said John W. Richardson and Harvey W.-Brown were designated and elected, in the manner prescribed by law, as justices of the sessions in and for said county of Otsego, for and during the year 1860; and the said John W. Bichardson and Harvey W. Brown duly took the oath of office, as such justice of sessions, as prescribed by the Constitution, before the 1st of January, 1860.
    The above facts were agreed to and conceded by the district attorney and the counsel for the defendant.
    And the district attorney here produced and read in evidence, an act of the legislature of the State of Hew York, passed February 4th, 1860. See.¡Session Laws, 1860, _p. 22, ch. 16.
    The court denied the motion, holding and deciding that the court was properly organized, and had jurisdiction to try the defendant, to which ruling and decision the counsel for the defendant excepted.
    Before the jury were called or sworn, and after the district attorney had moved the trial on the indictment, the counsel for the defendant moved the court to quash or set aside the indictment, on the ground, among other things, that several separate and distinct offenses, with different punishments, were charged in said indictment, which motion was denied by the court, and the defendant, by his counsel, excepted.
    And the counsel for the defendant then moved the court to compel the district attorney to elect upon which count or charge in said indictment he would try the defendant, which motion was also denied by the court, and the defendant, by his counsel, excepted.
    The same motion above stated, and upon the same grounds, as to the jurisdiction of the court, and the form and contents of the indictment, was made by the. defendant before pleading to the indictment, with the same ruling and exceptions as above.
    After which, the jury being empanneled and sworn, the cause was opened on the part of the People by the district attorney, who stated to the jury that he should not claim that the cuts on the body of Allanson were inflicted with the large bowie knife found in the room where the fight occurred, but that some other sharp instrument was used.

      Richard Allanson, called on the part of the People, testified, among other things, as follows: I went into Henry Helson’s saloon, in Cherry Valley, on the night of the 25th day oí December, 1859. and sat down there; defendant came down there, and said he could whip any man, or any two men, who insulted his woman; after some conversation, I told defendant I thought he could not whip me; he said he could, or would, and if I would step out in the street he would try, and we went out; defendant then said he would not fight any more in the street, but would go into a room, where we could fight it out alone; we concluded there was no room to be had that night, and so we agreed to meet the next morning at 9 o’clock, at Henry Kelson’s saloon.
    I went back to the saloon the next morning as agreed, about 9 o’clock, and sat down, and was there about 10 minutes before defendant came in; when he came in, he said good morning Dick, and I said good morning to him; he then said the time is most up; he said he did not know where we could get a room, unless we went to John Story’s; I told him I thought we could get a room nearer by, and then one of us said let’s go and see, and we started out and went toward Bates’ building, and we went up in the third story ; the door was locked; I said I will go and get the key to Kinne’s shop; I went then and saw Kinne and asked him for the use of that room for a few minutes, and Edward Peatt took the key and unlocked the room, and we all three went in; Peatt said, well, I guess you won’.t want me here, and went out; Kelson took the key and locked the door, and we both stepped into the bed room joining, and took off our coats, and came out in the main room. Kelson asked if the harness should be removed, and the stove and chairs; I said no, there will be no necessity for removing any thing but the chairs; I then took hold of one or two chairs and walked into the bed room and set the chairs down and turned to come out, and that was the last I knew; the next I recollect of, was being at home at my father’s house; the first day I remember of, after that day, was the 14th of January; this fight occurred on the 26th day of December, 1859; my father lives about a mile from the village, and is a farmer; defendant is not a married man; I understood we were to have a fair Jcnoclc down.;

      Dewitt C. Bates, testified among other things as follows: ■ On the 26th day of December last, I went to my office at 9 A. M. ; I heard a noise above pretty heavy and solid like throwing flown a heavy body on the floor; it attracted my attention, then I heard a most unearthly and terrible groan, a forced groan, between a loud scream and a groan, I listened an instant, and heard it once or twice; I went up stairs into the third story; I went to the door, which was’locked, heard no answer, when I called to him again to open the door; while I was at the door Mr. Cooper came up and suggested breaking open the door, and we broke it open and both entered the room; Allanson’s head lay within a few feet of the door; I did not know him, his face and bosom were covered with blood; his face was badly disfigured; he was apparently dead; I had known Allanson from his boyhood, but I did not know who this person was on the floor until defendant spoke his name; there was a spasmodic action of his head and breast; defendant then stood in the middle of the room, covered with blood, and said, I- have done it, I have whipped him, it was "fair play; ask Dick, and he will say so; the sheriff then came in and took defendant out of the room; Nelson was taken before a justice of the peace, and I appeared and made the complaint; after the defendant left the room I saw a large knife; Judge Clyde held it in his hand when I first saw it; I did not see Allanson again for a long time; there was a chair in the room near where Allanson lay, a Windsor chair, plank bottom; I discovered small spots of blood under the bottom of the chair and on the rounds.

      George C. Clyde, called for the People, testified, among other things, as follows: I went up to the room after the affray was over, and found a man there called Allanson, and the doctor; I felt something under the carpet in the bedroom with my foot, and stooped down and picked it up and found it was a large knife. The knife was here produced and identified by the witness as the one he found; witness said he handed it to Dr. Merritt. Nelson was present when the knife was produced before Esq. McLean.

      George Merritt, called, testifiedI live at Cherry Yalley; am a physician and surgeon; saw a wounded man, Allanson, at the house of Mr. Bates shortly after the fight; there were three or four wounds on his face ; there were two under the) right eye and on the right side of the upper lip, and a very slight wound across the nose ; the wounds under the eye were nearly parallel with each other, extending round near to the corner of the right eye, and near one-fourth of an inch apart, circular form like a half moon; they appeared one and one-fourth inches long; the depth of the wounds was from a quarter to half an inch; the face was swollen; the wounds under the eye looked like cuts made by something, I do not know what; they were not bruised cuts, but appeared to me to be cuts, clean cuts. The lip was cut perpendicular, which appeared to be made with same thing as the cuts under the eye, and the cut across the nose very slight; did not bleed ; in my opinion the wounds under' the eye and on the lip could not have been made with the naked fist; they were made with a cutting instrument; no other wounds in the shape of cuts; the face was bruised and swollen a good deal; the eyes were closed, not blind; there was a swelling or ridge on the back part of the head; I saw some marks or wounds on the shoulders, on the point of each; two or three scratches on the throat; seemed to have been made by finger nails; he was not sensible, but he could be roused by special effort; I treated him, perhaps, two weeks or less ; in five or six days he was convalescent; he was considerable delirious; I afterward measured the chair in the room where the fight occurred, and the distance between the hind legs corresponded with the distance between the marks on the shoulders of Allanson; the chair I measured was an old plank bottom Windsor chair; defendant asked me if the wounds were made by a ring on his finger; I told him I thought they were not; he, defendant, said he knocked Dick down, and that he held Allanson by the hair of his head on his knee, and struck him with his right hand in his face.

      Cross-examined: Defendant said they squared off for a fair fight, and struck at each other, and Allanson did not hit him, but that he knocked Allanson down with his fist, and then drew his head upon his knee and struck him with his right hand in the face; this was at the time the defendant was claiming that the cuts were made with the ring; defendant showed me his right hand after the occurrence; it was swollen; defendant said the agreement was that when either called out enough, they were to stop, and said that it was a fair fight between two gentlemen ; I was sworn before the justice, and testified that they were not made by the fist; these cuts could have been made by a dull knife; the depths of the wounds were a bad thing to judge of, for the reason that they were swollen badly; the face was badly beaten and discolored; the wounds healed up readily.-

      William Bastían, called by the People, said: He lived in Cherry Valley; knew the defendant, and made the knife shown in court, for defendant, at his request; it was intended for a bowie-knife; I have seen it in defendant’s possession at different times since.
    The district attorney here rested and the defendant called

      Edward Peatt, .who testified: I roomed in the building where the fight was; in the morning about 9 o’clock, Allan-son came to my room and wanted to know if he could have the use of the room for fifteen minutes; I told him I had nothing to do with the room; Mr. Kinne then came in, and Dick asked him if he could have it; Kinne said yes, and told me to take the key and unlock the door; I unlocked the room, and defendant and Allanson went into the room with me; the chairs were taken out of the room; Charlie carried some out, and I carried-one out; I think all the chairs were carried out, but I will not be certain; the first thing Allanson did was to take off his clothes, and he laid them on a table in the square room; Charlie took off his coat and vest, and then I saw him take an instrument out of his pants and throw it on the bed; Allanson then stood out in the square room, and Charlie was in the bed room; we all went out in the square room; defendant spoke and said, “Ed., are you going to stay?” I said no,

      and handed him the key and then left; Charlie had on a ring at the same time; the ring appeared more like a square top-than this, the one shown me now by defendant; this ring now shown me he had worn for the last 15 months; this ring shown to me does not look like the same ring he then wore; that was more of a square top ring; I did not notice anything else on his hand or in his hand; the next I saw of Allanson was after the fight, and he was lying on the floor.

      Cross-examined: I do not recollect of seeing a chair in the room after the fight; I think there were five or six chairs in all, in the room; .1 don’t mean to be-understood that all the chairs were taken out.

      John Hubbard, called for the defendant, testified, among other things, as follows: I went to the room after the affray; I asked Allanson if there was any foul play or anything wrong; if it was all fair; he said it was all fair, just as they had agreed upon.

      Phillip B. Wales, called by defendant: I was deputy sheriff when this transaction took place; I arrested defendant in the room where the fight took place; the night after the fight took place, the right hand of the defendant was badly swollen and inflamed; he took dinner with me that day; I had to cut his meat for him, and pour out his coffee; he could not use his hand; there was a scratch on his right' hand, and a mark on his nose; there was skin broken on the ridge of his nose; he had a ring on his finger when I arrested him; this is the ring; I have no doubt of it.

      Cross-examined: I did not notice the ring on his finger until in the evening of the same day of the fight, when he went to bed; that is the first I saw of the ring; I- do not know that he had the ring on when I arrested him; he was away from me several times during the day, fifteen minutes to a time.

      Davis W. Bates, qalled on the part of the people, testified: I heard defendant say the same day of the fight, that Allanson was a pretty man to go into a room to fight, as he had not got a clip at defendant.

      The cause was then and there rested, and the district attorney stated that he would not insist to the jury, on the evidence in the case, upon a conviction of the defendant for an assault with an intent to kill of maim as alleged in the first six counts in the indictment,- but he declined to abandon the counts in any manner, insisting that the defendant, under those counts, could be convicted of the minor offense of assault and battery, or under the statute of 1854.
    Whereupon, and after the argument of .counsel, his honor, L. 0. Turner, presiding judge, proceeded to charge the jury, and among other things as follows :
    “ The defendant is indicted for an offense of no ordinary character, at least in this county, and, although the evidence discloses a disgusting and brutal scene, it should not divert your minds from the impartial consideration of .the real issue presented for your determination.
    The indictment contains several counts; the district attorney, however, does not ask a conviction for a felony, as charged in either of the first six counts, but he asks a conviction upon the 7th and 8th counts, and insists that the defendant is guilty of the minor offense of a simple assault and battery in any event, and under any and all of the counts of the indictment.
    The major offense, and the only one charged in the indictment which you are to pass upon, is for a violation of the law of 1854, which declares that any person, who, with intent to do bodily harm, and without justifiable or excusable cause,» shall commit an assault upon the person of another with any knife, dirk, dagger or other sharp, dangerous weapon, shall, upon conviction thereof, be punished by imprisonment in a State prison for a term not more than five years, or by imprisonment in the county jail for a term of not exceeding one year.
    You will, therefore, first consider and determine from the evidence that has been submitted to you, whether or not the defendant (Nelson), with intent to do bodily harm, and without justifiable or excusable cause, did' commit an assault upon the person of Allanson with any knife, dirk, dagger, dr other sharp, dangerous weapon. .

    It is not disputed, indeed 'it is conceded, that these parties mutually agreed to go into a room and have a “ fair fight; ” that they did go into a room, lock themselves therein, and the result was that Allanson was dreadfully injured,' and the defendant unhurt.
    It is a disturbance of the public peace, promotive of disorder, violence and immorality, and a violation of law for two persons, by mutual agreement, to lock themselves into a room and fight; but the defendant is not guilty of the major offense as charged in the 7th and 8th counts of the indictment, although he intended to do bodily harm, and without justifiable dr excusable cause, unless he committed the assault upon-the person of Allanson with a sharp, dangerous weapon, no matter how badly Allanson may have been beaten, bruised and disabled; unless the assault was committed with some sharp, dangerous tueapon, the defendant is not guilty.
    The only evidence as to what took place immediately preceding the fight is that given by Allanson and Peatt (which was read by the judge to the jury), and there is no positive evidence that any sharp, dangerous weapon was used ; that such a weapon was used is only to be inferred from the wounds inflicted as described by the witness, Dr. Merritt. (The evidence of Dr. Merritt was read by the judge to the jury.)
    - You will therefore carefully scrutinize, and impartially consider the evidence before you, and if you determine therefrom that the defendant did assault Allanson with intent to do him bodily harm, and without justifiable or excusable cause, with a sharp, dangerous weapon as charged in the 7th and 8th counts of the indictment, or either of them, then you will render a verdict of guilty; but if you do not so determine or- entertain a reasonable doubt in relation thereto, then render a verdict of not guilty.
    Should you find that the defendant is not guilty of the major offense as charged in the 7th and 8th counts, then you have the right, should you regard the evidence as warranting it, to find the defendant guilty of a simple assault and battery.
    And as regards the commission of this minor offense, I charge you as matter of law, that, if the defendant and Allan-son, by mutual agreement, went into the room to fight, and the defendant struck Allanson first, he is guilty of an assault and battery. That if Allanson struck the first blow, and the defendant only used sufficient force and no more than was necessary to defend himself, then he is not guilty, but although Allanson did strike first, and the defendant used more force and violence than was necessary to protect and defend himself, then he is guilty of an assault and battery.”
    The jury thereupon retired under the charge of a constable duly sworn, and afterward returned into court, and the foreman of the jury, in the presence of the defendant, handed the clerk their verdict in writing, which the clerk read as follows:
    “We find the defendant guilty of assault and battery, with intent to do bodily harm with some sharp, dangerous instrument.”
    The court refused to receive said verdict, and directed the jury to amend their verdict, and if they intended to find the defendant guilty of the offense charged in the 7th and 8th counts in the indictment, to reconsider their verdict and to respond directly to these counts, to which refusal 'to receive, and direction to amend, the counsel for the defendant excepted. Whereupon the jury consulted together in the box without leaving court, and after such consultation, the foreman announced that the jury could not agree to find the defendant guilty under the seventh count, which had been read to them, and the court directed them to retire again, to which the defendant, by his counsel, excepted.
    The jury again retired, under the charge of the same constable, duly sworn as aforesaid, and after- being absent about twenty minutes, returned and rendered the following verdict, in the presence of defendant: “We find the defendant guilty of the offense charged in the eighth count of the indictment.”
    The counsel for the defendant then moved the court in arrest of judgment, upon the grounds stated in the motion to quash the indictment, for the reason that the court was not properly constituted, and also on the ground that no offense was charged in the eighth count in the indictment, which motion, so made, the court overruled, to which decision thó counsel for the defendant excepted.
    The prisoner was sentenced to imprisonment at hard labor in the State prison at Auburn, for two years.
    The cause was argued in this court, on the bill of exceptions . brought up by the writ of error, by

      James A. Lynes, for the plaintiff in error, and

      E Countryman (District Attorney), for the People.
   The Supreme Court, after advisement, decided that the right or title of the justices of sessions to their office, could not be collaterally inquired into, but only by a direct proceeding against them by information, in the nature of a quo warranto ; and that no error had been committed on the trial, and affirmed the judgment of the Court of Sessions.

Judgment affirmed.


author: By the Recorder.

text:
    New York General Sessions.
    April Term, 1838.
    Before Richard Riker, Recorder.
    The People v. Richard K. Frost.
    The object of an arraignment of a defendant, is to establish his identity. It is not indispensable to a valid arraignment, that the defendant should be called to the bar of thp court, tq answer the matter charged upon him in the indictment; and that, when so brought up, he should be called upon, by name, to hold up his right hand. Any other acknowledgment of identity will answer the purpose as well.

      Where the prisoner actually appeared and held up his hand, and thereby, and by subsequent acts, admitted his identity, it was held, on motion in arrest of judgment, to be a valid arraignment.
    Where a defendant had been duly arraigned, and by acts, if not by words, had demanded a trial, and had procured the cause to be set down for trial, and had challenged jurors, produced witnesses, and examined and cross-examined witnesses on both sides, and had summed up the case to the jury, after a verdict of guilty, a motion in arrest of judgment, on the ground that a formal plea of not guilty had not been put in, was denied.
    Where, on the trial of an indictment for manslaughter in the fourth degree, which lasted several days, the jurors were allowed to separate by consent of parties, after a verdict of guilty, the judgment will not be arrested on affidavits proving expressions used by one of the jurors, both before and during the trial, tending to show bias against the defendant, where the allegations are fully met and repelled by the affidavit of the juror assailed, and where, during the whole trial, the jury appeared to be attentive, patient and exemplary.
    The defendant was indicted for manslaughter in causing the . death of one Tiberius Gr. French. The evidence showed that the defendant was a physician of what was called the Thompsonian school, and that the death of French was caused by improper medical treatment, and particularly in the immoderate use of lobelia (known as Indian tobacco), and of the steam bath. The jury found the defendant guilty of manslaughter in the fourth degree, under that provision of the statute that declares that when death is caused “ by the act, procurement or culpable negligence of another,” it shall be deemed manslaughter in the fourth degree. The defendant thereupon moved in arrest of judgment, and also for a new trial, for reasons' set forth in the opinion of the court, delivered by recorder Biker, ' presiding justice, after full argument.

      T. Phoenix (District Attorney), for the People.

      David Paul Drown, for the defendant.
   By the Recorder.

The defendant in this case was indicted for manslaughter in the first degree, in feloniously causing the death of one Tiberius' Gr. French, on the 10th day of October, 1857, by administering to him deleterious and poisonous vegetable herbs and other things and decoctions, drank therefrom, and for ignorantly and unskillfully administering the • same. One of those vegetable herbs, and perhaps the most powerful and pernicious, was upon the trial denominated before the court .and jury to be lobelia, or, in common language, Indian tobacco. It is unnecessary here to go through the process used by the defendant in administering his medicines to Tiberius Gr French. After a protracted trial of ten days, in which much evidence was given on both sides, and the counsel fully heard before the court and jury, a verdict of .guilty was rendered against Frost for manslaughter in the fourth degree. It is now moved to set aside the finding of the jury on the following grounds:

I. That the defendant was not legally arraigned.
II. That he never legally pleaded to the indictment.
III. That James E. Wood, one of the jurors, had expressed himself before, and pending the-trial, if not hostile to the defendant’s practice, hostile to the herbs used by him and especially that lobelia is a poison.

As to the first objection to wit: that the defendant was not legally arraigned, it is only necessary to know the legal object of an arraignment to answer that question. Sir William Blackstone says (4 Com., p. 322): “ To arraign is nothing else but to call the prisoner to the bar of the court, to answer the matter charged upon him in the indictment” (2 Hale, P. C., 216); when brought to the bar “ he is called upon by name to hold up his hand. “ However,” adds the learned writer, “ it is not an indispensable ceremony, for, being calculated, for the purpose of identifying the person, any other acknowledgment will answer the purpose as well.” (4 Black. 323.)

In this case Frost was actually put to the bar, he actually held up his hand, and thereby, as well as by subsequent acts, admitted his identity. The objection therefore raised by his learned counsel, that he was not legally arraigned, falls to the ground. . • .

The second objection is that he never legally pleaded to the indictment. Much reliance was placed, to sustain this objection, on the decision of Oh. J. Parsons, and the other judges in the case of The Commonwealth of Massachusetts v. William Hardy (2 Mass. R., 303, 317).

Hardy was indicted for the murder of an infant. He was arraigned and pleaded before one judge only. The act of 15th March, 1805, under which he was tried, “ provided that all indictments for capital offenses, shall be heard, tried and determined exclusively when three or more justices were present.” (2 Mass. R., 315.) Hardy had never been arraigned or pleaded before any competent tribunal, for he never was either arraigned or pleaded when three or more judges were present. It is true he exercised the right of challenge and was fully defended by counsel. He was convicted. Chief Justice Parsons took the distinction between capital offenses, that is offenses punished with death, and those of an inferior grade. His language is: “ We are all of opinion, that the power of hearing, trying and determining an indictment for a capital offense, includes a power to arraign a prisoner and to record his plea” (p. 316). The verdict was set aside and a new trial granted, the chief justice saying, “ if quibbling is at anytime justifiable, certainly a man may quibble for his life.”

In the case, however, of The People v. Ransom, in our own State, reported in 7 Wend. R., 416-429, where the prisoner was tried and convicted of murder, the court refused to set aside the verdict, though the clerk had npt put into the ballot box the names of all the jurors, as he is directed by statute to do, the court saying that “ whatever irregularity, therefore, there may have been in this case, it is most evident that it has not effected or prejudiced, in any manner, the rights of the prisoner, and that he is not, according to the best established principles, entitled to a new trial.” (7 Wend. R., 429.)

Tn the case now-before the court, there is another view to be taken. Frost was clearly duly arraigned before a court of competent jurisdiction. It is not necessary he" should plead not guilty. It is enough for him to demand a trial. (2 R. S., 611, 2d ed.)

Surely this demand to be tried may be by acts, or words, or both. Frost’s counsel set down the cause for trial. Frost appeared and ratified the act of his counsel. He, with his counsel, challenged jurors, produced witnesses, examined and cross-examined them- on both sides, summed up fully and at great length. Surely this is equivalent to the most formal demand to be tried.

This cause may be placed in another point of view, and which will remove all doubt. It may be treated as a misdemeanor or a felony. Manslaughter in the fourth degree may be punished “ by imprisonment in a State prison for two years, or in a county jail not exceeding one year, or by a fine not exceeding $1,000, or by both such fine and imprisonment. (2 R. S, 552, 2d ed.) How it is clear that this court- may, in its discretion, treat the offense of Frost as a misdemeanor or a felony. If treated as a misdemeanor, the party may appear and plead, by counsel, and be tried in his absence, as was done in .the case of King v. Th. Paine. Mr. Ersldne defended Paine, though he was absent in France.

On all these grounds the second objection must be overruled.

We come now to the third objection, to wit: that Mr. Wood, one of the jurors, had expressed himself, before and pending the trial, hostile to the defendant’s practice. There is no doubt that every juror sworn to decide a cause, especially in a criminal one, should be superior to all and every unworthy bias or partiality. In this case, the jurors were allowed to separate by the consent of all parties. It is true that two witnesses have attempted to assail Mr. Wood—one by stating what he had said before the trial, one while the trial was pending, but it is equally true that Mr. Wood most fully, under his oath, meets and repels the charges. The entire conduct of Mr. Wood, and of all his fellow jurors, throughout the whole hearing of this long and arduous cause, was most scrupulously correct and discreet. They were attentive, patient and exemplary. There being no authority in the books for interference, where a juror negatives, upon his oath, the imputation of partiality (Graham on New Trials, 129), the court overrules that objection also, and nothing now remains for the court but to pass judgment.

The court had originally thought that public duty demanded that Frost should be subjected to imprisonment, but after due deliberation, considering that the legislature have sanctioned the practice, in the healing art, of using herbs, the growth of our own country (1 R. S., 2d ed., p. 451), and by men however uneducated and ignorant, and this being the first conviction for manslaughter, under a system deemed by the court, upon-the proof before it, pernicious and dangerous to human life, we have concluded that a fine, and a moderate fine, will answer all the ends of public justice—the court reserving a severe punishment for any future crime of a similar character.

The judgment of the court is, that Frost pay a fine of $250, to stand committed until such fine be paid.

       But it was held in The People v. Van Steenbergh (1 Park. Cr. R., 39), that such an offense is within the statutory definition of a felony:


author: Allen, J.

text:
    Supreme Court. Onondaga General Term,
    July, 1860.

      Allen, Mullin and Morgan, Justices.
    The People v. John McCloskey.
    A conviction for petit larceny before a Court of Special Sessions, is no bar to a subsequent conviction for burglary, where the prisoner is charged with breaking and entering a building with the intent of stealing therein, though the intent charged relates to the same larceny for which he had previously been convicted.
    In an indictment for burglary, the prisoner was charged with having broken and entered “the storehouse building of the Gulf Brewery, in which said storehouse building, goods, chattels, personal property, beer, ale and other valuable things were kept for use, sale and deposit, with intent,” &c., &c. It was proved on the trial that the Gulf Brewery was a corporation occupying a room in the basement of the court house, which it had thus occupied for several years for storing beer, by the consent of those having the supervision of the building, and that such room was separated from other rooms in the basement by partition walls with doors which were kept locked, the keys remaining in the possession of the agents of the corporation. The prisoner entered the basement through an open window into a hall occupied for public purposes, and thence entered the room, occupied by the Gulf Brewery, by breaking through the door. It was held that the proof sustained the indictment, that the room broken into was properly described as the storehouse building of the Gulf Brewery, and that the prisoner was guilty of burglary in the third decree.
    The defendant was indicted for burglary in the third degree, for breaking and entering, with felonious intent, a room in the basement of the court house in Utica, used by the “ Gulf Brewery" for storing of beer. The.entry into the basement was through an open window into a room used for county purposes, and thence into the room occupied by the “ Gulf Brewery,” by breaking a lock fastening and door leading from that room.. The prisoner had been convicted of petit larceny for stealing beer upon the occasion of the burglary, and this conviction was alleged in bar of the conviction for the higher offense. The prisoner was convicted of the burglary at the Oyer and Terminer, in Oneida county, in June, 1860, and the indictment and the bill of exceptions taken to the rulings and decisions of the court upon the trial, were removed to this court by certiorari.

      C. A. Mann, for the defendant.

      H. T. Jenkins (District Attorney), for the People.
   Allen, J.

The conviction for petit larceny before the Court of Special Sessions, constituted no bar to the indictment for burglary. The two crimes are entirely distinct. The court before which the first conviction was had, had no. jurisdiction of the higher offense, and consequently a convic-tion or acquittdl for the burglary would have been void as coram non judice. As the prisoner could not have been convicted of the burglary before the Court of Special Sessions, he cannot, upon being arraigned and tried upon an indictment, in a court having jurisdiction, allege that he is “ twice put in jeopardy for the same offense.” Where the indictment is defective, the plea of autrefois acquit is no bar to a second indictment. (People v. Barrett, 1 Johns. R., 66.) A portion-of the court cannot hold pleas of the offense. A conviction or acquittal will be no bar to a second indictment. (1 Buss, on Cr., 836.)

Again, the offenses are not the same. Upon evidence which would, sustain the indictment for burglary, the prisoner must have been acquitted of the misdemeanor. Unless the first of two indictments is such that the prisoner might have been convicted by proof of the facts contained in the second, an acquittal or conviction on the first is no bar to the second. (Commonwealth v. Roby, 12 Pick. R., 496; Burns v. The People, 1 Park. Cr. R., 182:)

The offenses (petit larceny and burglary) are distinct in their legal character, and in no case could a party indicted for the first be convicted of the second. (1 Russ, on Cr., 829.) The. acquittal or conviction on an indictment, in order to be a good defense to a subsequent indictment, must be for the same identical offense charged in the second indictment. (1 Russ on Cr., 836; 4 Bl. Com., 336.)

The demurrer to the plea of former conviction for the same offense was properly allowed.

As the prisoner, after judgment upon the plea, elected to plead not guilty and go to trial upon that plea, the plea and demurrer and judgment thereon properly constituted no part of the record before us. But I have thought proper, nevertheless, to consider the question raised by the demurrer, and think it was properly disposed of by the Oyer and Terminer.

In the fifth count of the indictment, the prisoner is charged with having broken and entered “ the storehouse building of the Gulf Brewery, in which said storehouse building, goods, chattels, personal property, beer, ale and other valuable things were kept for use, sale and deposit, with intent,” &c. Upon the trial, the “Gulf Brewery” was proved to be a corporation, having its place of business at Utica, and the premises broken into consisted of one or more rooms in the basement of the court house.in Utica, which for several years had been, with the acquiescence and assent of those having the supervision of the building, occupied by the “ Gulf Brewery ” for storing beer, and which were separated from the other rooms in the basement by partition 'walls, with doors which were kept locked, the keys remaining in the possession of the agents of the corporation.

The possession of these rooms by the corporation had been exclusive, and the alleged burglary consisted in breaking the door leading into these apartments, the prisoner having gained access to the basement through an open window into a hall or wood room, occupied for public purposes.

At common law, burglary could only be committed in respect of a dwelling house. A burglar is defined to be “ he that by night breaketh and entereth into a mansion 'house with intent to commit a felony.” It might be by breaking in from the outside, or, having gained an entrance, by breaking an inner door. (4 Bl. Com., 224, 226; 1 Russ, on Cr., 785, 790.)

The breaking into a shop or warehouse was not burglary, but if a barn, stable, or warehouse, were parcel of the mansion house, and within the same common fence, though not under the same roof or contiguous, a burglary might be committed therein. (4 Bl. Com., 225; 1 Russ, on Cr., 799.) .So there might be several mansions or dwellings under the same roof, and all accessible by the same outer door, and by a common hall. A chamber in a college, or an inn of court where each inhabitant hath a distinct property, is to all purposes the mansion house of the owner. (1 Hah P. C., 556.) So also is a room or lodging in any private house, the mansion, for the time being, of the lodger; if the owner doth not lodge in the house, or if-he and the lodger enter by different outer doors. (Id.) So also, a parcel of a dwelling house might be so separated from the rest as not to be the subject of a burglary. If I hire a shop, parcel of another man’s house,' and work or trade in it, but never lie there, it is no" dwelling house, and by the common law, no burglary can be committed therein; for, by the lease, it is reserved from the rest of the house, and therefore is not the dwelling house of him who occupies the other part. (1 Hale P. C., 558 ; 1 Russ. Cr., 799.) It was the separate occupation of several tenants or lodgers in the same house, or the character of the occupation of different parts of the same house which, in the former case, gave to the several parts of the same building the character and privilege of several mansions or dwellings, and in the other, took from the parcel separated from the other parts of a dwelling, its peculiar character. A lease of a part of a dwelling house for a shop or warehouse, made that part a shop, so that it was not within the protection given to dwelling houses, but it was necessarily within the protection given to shops, and when, by statute, a forcible breaking into a shop was made burglary, it was a shop within the provision bf the act. In other words, being a shop for one purpose, it was a shop for all purposes. A building could, therefore, in its different parts, be occupied by several persons for shops or warehouses, and each distinct occupation be the subject of a burglary. The occupation of a parcel of a building is none the less distinct and exclusive, because it is occupied as a shop or warehouse, rather than as a lodging or sleeping place. In the one case it is the dwelling house of the lodger, in the other, it is the shop or warehouse of the occupant.

It follows that, in this case, the rooms exclusively occupied by the “Gulf Brewery,” were the “storehouse” of that company, and, as they had the peaceable possession of the premises, their possession and property, were within the protection of the same, and whether they could have held possession against the public, is not material. The statute of this State prescribes the cases in which an individual being within or entering a house, not having entered burglariously, may, by breaking an inner door, be guilty of burglary. (2 R. S., 668, §§ 14,15.) By § 20 it is declared that the breaking of an inner door of a dwelling house shall, in no other case, constitute burglary. But this statute does not touch the case of separate dwellings under the same roof, and hence the case of People v. Fralick (Hill & Den., 63), does not affect the question before us. Bumpus was the occupant of the whole mill. There was no separate occupation of a part by another individual, so as to make the part entered through the trap door a separate shop, or warehouse, or mill. The well established principle that there may be several dwelling houses under the same roof, when different rooms or sets of rooms, are occupied by different tenants, the outer door or hall being common to all, is reaffirmed in People v. Bush (3 Park. Cr. B., 552). The Revised Statutes (2 R. S., 669, § 17), provided for a class of cases for which there was before no law in this State, and it made the breaking and entry in the day or in the night time, of any shop, store, tent, booth, warehouse or other building, in which any goods, &c., should be kept, &c., with intent to steal, &c., burglary in the third degree. The apartments occupied by the “ Gulf Brewery,” were within this provision. The door which was broken by the prisoner, was an outer door of the storehouse, and he was rightfully convicted. The indictment, bill of exceptions, and all proceedings must be remitted to the court below, to the end that judgment be rendered. (2 R. S., 741, § 25; 11 Wend. R., 568.)

Mullin, J., concurred; Morgan, J., dissented.


author: Sutherland, J.

text:
    Supreme Court. At Chambers, City of New York,
    August, 1860.

      Sutherland, Justice.
    The People v. James Divine.
    Where, on the return to a writ of habeas corpus, the imprisonment was justified under a commitment in due form, by which it appeared that the prisoner had been regularly tried and convicted of petit larceny, before a Court of Special Sessions, held by three police justices, it was held to be competent for the prisoner’s counsel to prove, by evidence aliunde, that only two of the police justices were, in fact, present'when the prisoner was arraigned and pleaded, and when he was tried and sentenced, for the purpose of showing that the proceedings before the Court of Special Sessions were coram non judice and void.
    There must be three police justices to hold a competent Court of Special Sessions in the city of Hew York. The forty-eighth section of the act of the legislature of April 14, 1851, is, so far as it affects this question, repealed by the eighth and ninth sections of the act of April 16, 1858. And where it appeared that a conviction had taken place before two police justices only, under which the defendant was imprisoned, he was discharged on habeas corpus.

    James Diyihe was sent to Blackwell’s Island on a charge of petit larceny, the conviction having been had at a Court of Special Sessions, held in the city of Hew York by two police justices. His counsel had him brought up on habeas corpus, and asked for his discharge, on the ground that he had-been illegally convicted. It was claimed that to give a Court of Special Sessions jurisdiction, it must be held by three justices.

      Phillips & Stuyvesant, for the Prisoner.

      John Sedgwick (Assistant District Attorney), for the People.
   Sutherland, J.

The warden or keeper of the penitentiary, to the writ of habeas corpus, returns a copy of the commitment under which the prisoner was received into his custody, and by virtue of which he is held and detained. The commitment is in due form, and regular on its face. By it, it would appear that the prisoner was duly convicted of the crime of petit larceny, at a Court of Special Sessions of the peace, held by three police justices—Quackenbush, Kelly and Steers — on the 31st day of July, I860,,and that upon such conviction he was ordered and adjudged to be imprisoned in the penitentiary for the term of three months.

It was alleged on behalf of the prisoner, by way of a traverse of .this return, that the said Court of Special Sessions, at which the prisoner was tried and convicted, was in fact held by two of the police justices only, viz.: Justices Quackenbush and Steers; that Justice Kelly was not, in fact, present when the prisoner was arraigned, tried or sentenced:. and proofs were offered aliunde the commitment or return to prove such allegations.

These proofs were objected to by the assistant district attorney, on the ground that in this habeas corpus proceeding I could not go behind the commitment; that it was of the nature of final process and could not be impeached in this proceeding. He also insisted that two police justices were authorized to hold a Court of Special Sessions, and, therefore, that the allegations and the proofs thereof were immaterial.

The proofs were received and the questions reserved.

No objections were made by the assistant district attorney ■ to the form of the proofs.

It is conclusively shown, by several affidavits of parties present at the trial, and by the certificate of the clerk of the said Court of Special Sessions, that the said court, at which it is alleged the prisoner was so tried and convicted, was in fact held by only two justices; that Justice Kelly was not present when the prisoner was arraigned or pleaded, or when he was tried or sentenced.

The questions, then, are:
1st. Has the prisoner a right in this proceeding thus to impeach the commitment ?
2d. If he has this right, do the facts shown by the affidavits and the certificate of the clerk of the Court of Special Sessions, so far impeach the commitment and the jurisdiction of the court which tried and sentenced the prisoner as to entitle him to his discharge ?

I think that both questions must be answered in the prisoner’s favor.

If two justices could not legally hold a Court of Special Sessions, but it took three to constitute such court, then the trial, conviction and commitment of the prisoner were absolutely void; for then the alleged court that tried and sentenced him was not a court, and the two justices who tried and sentenced him had no jurisdiction whatever,, and the prisoner was and is unlawfully imprisoned.

Now, it is the very office of 'the writ of habeas corpus to ascertain whether the prisoner is unlawfully imprisoned—• and how could the prisoner in this case show that the court was illegally constituted and had no jurisdiction, except in the way he has done, by proof aliunde the return or commitment?

The prisoner could hardly estop himself from the right of showing at any time, and at all times, a total want of jurisdiction.

It is plain by authority, as well as on principle, that the prisoner has a right to show in this proceeding that the court, or magistrate acting as a court, who tried and sentenced him, had no jurisdiction. It is sufficient to cite The People v. McLeod, (1 Hill, 669, and notes).

If, then, the two justices, who undertook alone and without a third, as a Court of Special Sessions, to try and sentence and commit the prisoner, could not and did not legally constitute a Court of Special Sessions, and had no power to try, convict or commit him, he must be discharged.

Whether the two justices did or could constitute such court, and had such power, depends upon the construction of the eighth and ninth sections of the act of April 16th, 1858, entitled “An act to provide for the appointment of a clerk and deputy of the Court of Special Sessions, in the city and county of New York, and in relation to the justices of said court.”

By the eighth section, “ the said Court of Special Sessions may be held by any three of the said police justices, who shall sit alternately, except that one of their number may be selected to preside. And the said justices shall meet in convention and assign justices to hold the several terms of said court.” By the ninth section, all acts and parts of acts inconsistent therewith, are'repealed.

By the forty-eighth section of act of April 14th, 1857, amending the city charter, Courts of Special Sessions in the city of New York may be held by any two police justices of said city, and it is thereby declared that when so held, all the. powers and jurisdiction appertaining by law to such court, shall be possessed and exercised by the officers holding the same.

The question is, was the provision in the act of 1857 repealed by the act of 1858 ?

It is almost too plain for argument that the word may in both statutes means shall. It is hardly necessary to resort to the general provision of the Eevised Statutes, vol. 3, 5th ed.,. 869, §29, to show this. Statutes conferring criminal jurisdiction should be construed strictly. Not less than three justices can hold the court under the act of 1858. It would certainly be extraordinary if we had two statutes on our statute books in force, the one authorizing Courts of Special Sessions in the • city of New York to be held by two, and the other by three police justices.

I think the provision in the act of 1857 plainly inconsistent with the act of 1858, and was intended to be and was repealed by it, and, therefore, the prisoner must be discharged.


author:
Taylor, Ch. J., Drake, J., Williams, J.,
      By the Court.

text:
    New York General Sessions.
    June, 1860.

      A. D. Mussel, City Judge, presiding.
    The People v. Charles Van Keuren, impleaded with Franklin Walters.
    Norm of a plea of autrefois acquit.

    ■Where a defendant had had in his possession, at the same time, several counterfeit bank notes purporting to have been issued "by different banks, and had ■ been tried for having had one of such counterfeit notes in his possession with intent to utter it, and had been acquitted, such acquittal was held to be a bar to a conviction, on a subsequent trial, on another indictment, for having had the others of such counterfeit bank notes in his possession with intent to utter them.
    On a plea of autrefois acquit, interposed in such a case, to which the district attorney demurred, judgment was given, on the demurrer, for the defendant.

      On the seventeenth day of May, 1860, the defendant, Van Keuren, was tried in the Mew York General Sessions, on an indictment, charging him, in conjunction with one Walters, with having in his possession, in the city of Mew York, with intent to pass, a one dollar bill of the bank of Morfolk, Connecticut. On the trial, it appeared that, on Sunday, the 25th of March, 1860, Van Keuren, in company with Walters, entered a lager bier saloon, kept by one George Zuckschwerdt, at Mo. 305 Stanton street, in said city: that Walters called for drinks, of which both partook, and paid for them with a counterfeit one dollar bank bill, Walters receiving the change. Walters •and Van Keuren then left. Mr. Zuckschwerdt immediately discovered that the bill was bad, and called a policeman who pursued Walters and Van Keuren, and arrested them. Van Keuren took from his pocket a large number of counterfeit bank bills, and was in the act of throwing them away, when the policeman wrested them from his hand. The bill set forth in the indictment was one of these. This was shown to be counterfeit, and given in evidence. The other bills were also proved to be counterfeit, and introduced in evidence for the purpose of proving guilty knowledge. The defendant, Van Keuren, however, was acquitted. He had been indicted,, also, •with Walters in other indictments, upon several of the other counterfeit bills. After his acquittal, the district attorney moved the trial of one of the other indictments. Defendants’ .counsel thereupon interposed ' the following plea of former acquittal.
    Mew York General Sessions.
    Charles Tan Keuren, impleaded with Erauklin Walters,

      ads.

    The People.
    And the said Charles Van Keuren, in his own proper person, cometh into court here, and having heard the said indictment read,_ by leave of the court, saith, that'the said People of the State of Mew York, ought not further to prosecute the said indictment against him, the said Charles Van Keuren because he saith, that he, the said Charles Yan Keuren, by the name and description of Charles Yan Keuren, heretofore, to wit: At a Court of General Sessions of the Peace, in and for the city and county of Hew York, holden at the City Hall, in and for the city and county of Hew York, of the term of April, to wit: on the 27th day of April, 1860, it was by the jurors of the People of the State of Hew York, in and for the body of the city and county of Hew York, upon their oaths presented, “That Charles Yan Keuren, late of the first ward of the city of Hew York, in the county of Hew York, aforesaid, and Franklin Walters, late of the same place, oh the 25th day of March, in the year of our Lord one thousand eight hundred and sixty, - with force and arms, at the ward, city and county aforesaid, feloniously had in their possession a certain forged and counterfeited negotiable promissory note, for the payment of money, commonly called a bank note, purporting to have been issued by a certain corporation or company, called the Horfolk Bank, duly authorized for that purpose, by the laws of the State of Connecticut, which said last mentioned forged and counterfeited negotiable promissory note, for the payment of money, is as follows, that is to say:

    "With intention to utter and pass the same as true, and to permit, cause and procure the same to be so uttered #id passed with the intent to injure and defraud divers persons to the jurors aforesaid unknown, they, the said Charles Yan Keuren and Franklin Walters, then and there well knowing the said last mentioned forged and counterfeited promissory note, for the payment of money, to be forged and counterfeited- as aforesaid, against the form of the' statute in Such case made and provided, and against the peace of the People of the State of New York and their dignity. Nelson J. Waterbtiry, district attorney.” Which said last mentioned indictment is indorsed, “ a true bill,” and signed by Fulton Cutting, as foreman, and by Nelson J. Waterbury, as district attorney; and the said Charles Van Keuren, in his own proper person, farther saith, that at a Court of General Sessions of the peace, in and for the city and county of New York, holdeti at the City Hall, in and for the city and county of New York, of the term of May, to wit: on the 17th day of May, 1860, before the Hon. A. D. Russell, city judge, he, the said Charles Van Keuren, was charged in the above last recited indictment for forgery, and his plea to the same being demanded, he, the said Charles Van Keuren, pleaded thereto “ not guilty,” and, on motion of Nelson J. Waterbury, Esq., district attorney for the city and county of New York, the Said court ordered on the trial of the said Charles Van Keuren Oft said indictment for forgery.
    Whereupon, the sheriff having returned a panel, the following persons appeared and were sworn, viz.:' Charles B. Hayes, Nicholas N. Romain, Edwin R. Beach, Meyer L. Christeler, Henry G. Selick, Wilson Mettler, John H- Nichols, James Weir, James H. Crawford, William H.- Bluhdom, Patrick M. Fallen, Charles Johnson. After hearing the testimony and a chargé from the court,- the jury retired to consider Of their verdict, with Bartholemew Ward, the officer sworn to attend them, and after some time the said jury returned into court, and said they had agreed on the verdict, and by Charles B. Hayes, their foreman, said they found the said Van Keuren not guilty, in manner and form as he stood charged, and so said they all, as by- the record thereof, more fully and at large appears; which said judgment still remains in full force and effect, and not in the least reversed or made void. And the said Charles Yan Keuren, in fact, saith that the' said Charles Yan Keuren so indicted and acquitted as aforesaid; and he, ■the said Charles Yan Keuren, who is charged in the present ■indictment first above mentioned and set forth, are one and the same person, and not other and different persons, and that the said offense of forgery, in the said former indictment mentioned last above set forth, and the said offense of forgery in this present indictment first above mentioned, are one and the same offense -of forgery, and not divers and different offenses of forgeries; and that the said bank note, in the said former indictment last above mentioned and set forth, and the said bank note in the present indictment first above mentioned and set forth, were held by him, the said Charles Yan Keuren, at the same time and place, and under the same circumstances, and with the same want of any guilty knowledge of him, the said Charles Yan Keuren, of the same being forged or counterfeited; and with the same innocence of any intention of him, the said Charles Yan Keuren, to utter or pass the same as true, or to permit, cause or procure the same to be so uttered or passed, with intent to injure or defraud any person or persons; and that they were in the same parcel, and they were finally taken from his possession on the same occasion and under the same circumstances; and the same were not held by him at any other :or different times or places, nor under any other or different circumstances, nor with any knowledge of the same being forged or counterfeited, nor with any other or different intent; and the same were not in any-other or different parcel, and were not taken from his possession upon any other or different occasions, nor under any other or different circumstances; and this he is ready to verify. Wherefore, since he, the said Charles Yan Keuren, hath already beén heretofore acquitted of the offense of forgery aforesaid, he prays judgment, and that by the court he may be dismissed and discharged from the said premises, in the present indictment specified.
    HENRY L. CLINTON,

      Of counsel for defendant Van Keuren.

      To this plea the district attorney interposed a demurrer. The prisoner -joined in demurrer.

      Henry L. Clinton, for the prisoner.'
    The plea of former acquittal, on the facts set forth, is clearly good. The evidence to sustain this indictment was admissible' to prove guilty knowledge on the former trial. All the bills found in the possession of the prisoner, at one and the same time, could be given in evidence, on an indictment setting forth any of such bills. With the exception of positive admission of guilty knowledge, the introduction in evidence of other bills than those set forth in the indictment, is usually the principal mode of establishing the scienter.

    If the material question involved in this might have been the subject of testimony, and might have been passed upon by the jury, on the trial of the former indictment, the defense interposed by the plea of former acquittal is impregnable.
    The books are full of cases illustrating this principle. Thus in the case of The People v. Allen (1 Park. Cr. R., 445), it was held on the trial of an indictment, charging the defendant with having uttered and published, as true, a promissory note made by the defendant, on which the names of certain individuals appearing as indorsers were alleged to have been forged, it was a good defense, under the plea of autrefois, acquit, that the defendant had before been indicted and tried for the offense of forging and counterfeiting the same indorsements, and in such previous trial had been acquitted by the verdict of a jury upon the merits, the only controverted question on both trials being whether such indorsements were genuine.
    In the case of The People v. McGowan (17 Wend. R., 386), it was held that a trial and acquittal for robbery was a bar to an indictment for larceny, where the property alleged to ha.ve been taken is the same. Coweh, J., in delivering the opinion of the court, observes: “ In such cases it is well settled that where the former indictment might have been sustained by showing the offense charged in the second, a prima fade case is made out for the prisoner. It then lies with the people to show by evidence aliunde that the offenses are substantially different in point of fact or to give some other answer.”
    In The People v. Taylor (3 Denio R., 95), Bronson, J., upon the subject of what is necessary to be proved on the trial of the plea of former acquittal, observes: “An averment of identity is always necessary both in civil and in criminal cases, where a former -trial is pleaded in bar, and when properly pleaded it is enough to show by the record that the pleadings were such in the first case, that the same matter might have come directly in question on the trial; and then to show by extrinsic evidence that it did in fact so come in question on the trial.” In State v. Commissioners of Fayetzville (2 Murphy R., 371), it was held that where defendants were bound to keep the streets of an incorporated town in order, and three or four streets are presented on the same day, the defendants should be indicted but once for all; if separate bills be found, on a conviction on one, it might be pleaded in bar to the others.
   Taylor, Ch. J.,

in delivering the opinion of the court, holds the following language: “ The defendants are bound to keep all the streets of the town in repair, and are liable to an indictment upon every neglect of this duty. But if more than one street is out of repair at the same time this does not multiply the offenses, though the one committed must take its nature and degree from the greater or less negligence with which it is attended. It would be monstrous to charge them with separate indictments for every street in the town, when the whole were out of repair at the same time, especially when upon one indictment a fine can be imposed, adequate to the real estimate of the offense. Were such a doctrine tolerated it is impossible to say where its consequences would end ; for then an overseer, whose road is out of repair, might be charged in separate indictments for every hundred yards (why not every yard ?), and be ruined by the costs, when perhaps a moderate fine would atone for the offense. This notion of rendering crimes, like matter, infinitely divisible, is repugnant to the spirit and policy of the law, and ought not to be countenanced. It is the opinion of the court that the plea of autrefois conoid, relied on by the defendant, is a bar to all the other indictments.

In State v. Cooper (1 Green R., 361), it was held that a conviction, upon an indictment for arson, is a good plea in bar to an indictment for murder caused by the burning of the same house.

Drake, J.,

in delivering the opinion of the court in this case observes : “ It is also a maxim of the common law, that ‘ no man is to be brought into jeopardy of his life more than once for the same offense.’ The constitution of Mew Jersey adapts and declares this important principle in this form: ‘ Mor shall any person be subject for the same offense to be twice put in jeopardy of life and limb.’ Our courts of justice would have recognized it, and acted upon it as one of the most valuable principles of the common law, without any constitutional provision. But the framers of our constitution have thought it worthy of especial notice, and all who are conversant with courts of justice, and the proceedings in them, must be satisfied that this great principle forms one of the strong bulwarks of liberty; and that if it be prostrated, every citizen would become liable, if guilty of an offense, to the unnecessary costs and vexation of repeated prosecutions, and if innocent, not only to those, but to the danger of an erroneous conviction from repeated trials.” ****** “If in civil cases the law abhors a multiplicity of suits, it is yet more watchful in criminal cases, that the crown shall not oppress the subject, or the government the citizen, by unnecessary prosecutions.”

In the case of State v. Benham (7 Conn. R., 414), it was held that having in one’s" possession several forged bank notes of different banks at one time, with intent to pass them, and thereby to defraud the person who shall take them, constitute but one offense. And if there be several informations charging that the several bills so held in possession were held with-intent to defraud the several banks by which they were issued, as well as the person who should take them, there is still but one offense charged.

The following is the reporter’s statement of the case:

This was an information charging-the prisoner, Amos Ben-ham, with having in his possession, on the 26th of December, 1828, a forged note or bill of the Troy Bank, with intention to utter and pass the same, and with intention to defraud the said Bank of Troy, and also him or them to whom he should utter or pass the same, knowing it to be forged. To this information the prisoner pleaded a former information filed against him at the same time, for having in his possession a bank note of the Mechanics’ Bank of the city of New York, with intent to utter and pass the same, and with intent to defraud the said Mechanics’ Bank, and also him or them to whom he should pass the same; upon which last information the plea averred trial had been had and the prisoner found guilty, and judgment thereon impends. The plea also averred that the offense charged in the information, upon which the prisoner had been convicted, is the same offense wherewith he is charged in the present information, and that the said bank note specified in that information was held by the prisoner on the said 26th day of December, 1828, at the same time and place, and with the same intent, and with the same knowledge of its being forged, and that it was in the same parcel, and was, finally, taken at the same time from his possession, and was never at any different time in his possession. To this plea there was a demurrer. The court adjudged the plea sufficient. To review that decision the attorney for the State, by motion in error, brought the case before this court.

Williams, J.,

in delivering the opinion of the court, says: “ The statute upon which this information is founded, enacts: That if any person shall have in possession, or receive from any other person, any forged or counterfeited promissory note or bill for the payment of monéy, with intention to pass or utter the same, or to permit, cause or procure the same to be uttered or. passed, with intention to defraud any person or body politic or corporate, knowing the same to. be forged or counterfeited, every such person so offending, being thereof duly convicted, shall suffer punishment, &c.

“ The prisoner had in his possession at one-time several bank notes or bills of different banks, which were taken from him' at one time. He had been tried for having one of. them in his possession, and convicted; and the question now is, whether he can be again tried and convicted for passing each of the other notes of the different banks which he had at that time. In other words, is the possession of each bill or note, holden at one and the same time, a distinct offense, and punishable as a distinct crime? * * * The number may add to the evidence of guilt, but not to the number of offenses. In an action for the penalty of insuring tickets in a lottery, where ten tickets were insured at one and the same time, Lord Kenyon held that but one penalty could be recovered.
“ This information might have specified each note which the prisoner had in his possession, as was done in several cases cited in King v. Sutton Co. (Tem. Hardw., 372). Had that been done, it would hardly be claimed that there could have been several punishments. The offense, then, is one and the same offense.”

From the report of this case it will be perceived that the statute of Connecticut is substantially similar to ours, and that the precise point relied upon here was there adjudged. The statutory provisions of Hew York applicable to the subject are as follows:

§ 36. Every person who shall have in his. possession any forged, altered or counterfeit negotiable note, bill, draft or other evidence of debt issued, or purporting to have been issued, by any corporation or company duly authorized for that purpose by the laws of the United States, or of this State, • or of any State, government or country, the forgery of which is hereinbefore declared to be punishable, knowing the same to be forged, altered or counterfeited, with .intention to utter the same as true or as false, or to cause the same to be so uttered, with intent to injure or defraud, shall, upon conviction, be subject to the punishment herein prescribed for forgery in the second degree.” (2 R. S., 674.)
§ 42. “ Persons convicted of the different degrees of forgery herein specified shall be punished as follows:
1. Those convicted of forgery in the first degree, by imprisonment in a State prison for a term not less than ten years.
2. Those in the second degree, by a like imprisonment not more than ten and not less than five years.” (Ib.)

Thus it will be seen that, if the defendant is liable to a conviction on each of the fifteen counterfeit bank bills, taken from his possession at the same time, and under the same circumstances, he might be seritenced to imprisonment in the State prison for one hundred and fifty years ! The law is chargeable with no such cruelty.

J. H. Anthon, for the People, contended that the plea was bad; that the offenses set forth in the former and present indictments were entirely distinct and different, and that the case of The People v. Benham (7 Conn. R., 414) was distinguishable from the case at bar, inasmuch as there was a conviction in the former case and an acquittal in the latter case.

By the Court.

The defendant had in his possession at one time several bank notes or bills of different banks, which were taken from him at the same time. He has been tried for having one of them in his possession and acquitted, and the question arises whether he can be again tried for possessing each of the other notes of the different banks which he had at that- time. Is the possession of each bill or note, holden at one and the same time, a distinct offense, and punishable as a distinct crime ? I cannot perceive how they could be deemed distinct offenses. Had the defendant uttered or paid away all of the bills found in his possession to one person at the same time, it cannot be claimed that he could be convicted of more than one offense; and yet it is claimed that, having them in Ms possession, although he never offered to utter them, he may be punished for more than one offense. The act- of possessing several notes, found in defendant’s possession at the time of his arrest, must be considered as- one and the same offense, as much as the act of stealing a number of articles at" the same time and place. (State v. Benham, 7 Conn. R, 417.) This case was decided by the Supreme Court of Errors, in Connecticut, in a case similar to the one in question, except that in that case the verdict of the jury was that of guilty. A distinction between the two cases was urged by the district attorney on that ground, but I cannot perceive that there is any difference. The pleas of autrefois acquit and autrefois convict rest upon the same legal principles. The same law applicable to the one is applicable to the other. (Whar. Am. Cr. Law, 540.) Judgment must, therefore, be rendered in favor of the defendant and against the People on the demurrer.