author: Edmonds, J.,

text:
    New York Oyer and Terminer.
    Before Edmonds, Justice, a id Aldermen Stevens and Dodge.

    The People vs. John S. Austin.
    Where an indictment contains several counts charging the same offence in different forms, the prosecution will not be compelled to elect on which count they ask a conviction. Such election will be directed only when the several counts charge separate and distinct offences.
    It is not collateral but relevant to the main issue to inquire into the motives which influence a witness in giving his testimony, and a party examining a witness in regard to them, is not bound by his answers but may contradict him.
    A sufficient foundation is laid for such contradiction ’if the attention of the witness has been directed to the time, place and circumstances attending an alleged statement made by him, and the name of the person to whom he may have made it, need not be mentioned, if it was not necessary to enable him to know to what remark his'attention was directed.
    The statute allowing the relative of a person killed, to recover damages therefor, it will be no impeachment of a witness, that he as father of the deceased, had attempted by negotiation to recover compensation from the author of the death.
    Whether a homicide was justifiable under the statutes is to be determined by the jury from their conviction whether there w.as reasonable ground for the accused to apprehend great personal injury, and not from the fact that the accused did in fact entertain such apprehension.
    Whether a homicide is excusable or not, must depend in a great measure upon the nature of the weapon used and the manner in which it was used. Killing by intentionally firing a pistol into a crowd can not be said to be by accident or misfortune. To constitute murder there must be an intention to kill, in all cases, except where the perpetrator is at the moment engaged in committing a felony.
    Any killing without a design to effect death unless it is justifiable or excusable is manslaughter only.
    Implied malice, constituting killing, without an intention to kill, murder, is not recognized in our law.
    Recent provocation, and the fact that the passions have not had time to cool, do not under our statute mitigate a killing with a design to effect death from murder to manslaughter. Such killing is murder, whether the design to effect death was formed on the instant or had been previously entertained.
    The intention to take life constitutes, under our statute, the main distinction between murder and manslaughter.
    The prisoner was indicted with one Nesbitt, for the murder of Timothy Shea, on the 28th of September, 1848, by firing a pistol at him.
    The indictment contained two counts, one charging that the pistol was fired by Austin by the aid and procurement of Nes-bitt, and the other that the firing was by Nesbitt, and that Austin aided and encouraged.
    After the testimony for the prosecution closed, which tended to show that Austin had fired the pistol, J. Graham, for the defence, moved that the prosecution be put to their election on which count they intended to ask for the conviction of the prisoner. He insisted that the prosecution, having now got in all its testimony, was able definitely to inform the prisoner of the precise nature of the charge of which they claimed him to be guilty, and that it was his right to know, so as to determine how to shape his defence.

      II. G. Wheaton (who appeared instead of the attorney general)
    insisted that the right to compel an election existed only when the indictment contained distinct charges, and not where,/ as in this case, it contained only charges connected with the same transaction.
    Edmonds, J. — That is undoubtedly the true rule where the two offences charged form parts of one transaction, yet are of such a nature that the defendant may be found guilty of both. The prosecutor will not be called on to elect upon which charge he will proceed, for in such case the joinder of counts 'can not prejudice the defendants, which is the only ground on which this application to the discretion of the court can be founded. The right of election is confined to cases where the indictment contains charges which are actually distinct and grow out of different transactions. Thus the prosecution will not be compelled to elect on an indictment charging both larceny and receiving stolen goods, where it appears by the indictment that the charges relate to the same transaction modified to meet the proof, nor when several counts are inserted in an indictment solely for the purpose of meeting the evidence as it may transpire on the trial, the charges being substantially for the same offence. Such is this case, and the impropriety of compelling an election here is very apparent. If the prosecution should elect to go on the count that charges Austin with having fired the pistol, and it should turn out on the trial that it was in fact fired by Nesbitt, but by the order and procurement of Austin, Austin would be guilty of the murder, yet could not be convicted because the prosecutor had been compelled to elect, and in a necessary ignorance of the facts had elected the wrong count.
    The prisoner can not be embarrassed by being tried on both counts, while the prosecution may be much embarrassed and indeed entirely thwarted by being compelled to elect.
    The motion must be denied.
    John Shea, the father of the deceased, was examined as a witness on the part of the prosecution, and on his cross-examination was asked whether he had not offered to the prisoner or some of his friends to leave the state and refuse to testify in the case for a suitable remuneration. To which he had answered, not exactly that, but-and was then proceeding to detail what he had said in that regard, when he was stopped by the prisoner’s counsel, and told that they had got all the answer that they'wanted.
    On his reexamination by the prosecution he was asked what it was he had said in that regard.

      D. Graham, for prisoner,
    objected.
    Edmonds, J. — But you have yourselves introduced the subject and have obtained only part of an answer. The whole of it ought to be got out. Besides, you have an answer from which you may call on the jury to infer corruption on the part of the witness, while the matter may be susceptible of a per* feet explanation. It will be right to have it all.
    Being examined on that point the witness detailed two interviews with one who acted as an agent of the prisoner in conducting his defence, in which, as he alleged, an offer had been made to him of some money if he would remove from the state.
    After the prisoner had entered upon his defence, his counsel offered to prove several acts of this witness going to show a desire to obtain from the prisoner pecuniary satisfaction for the injury which he had received by the death of his son, and what had taken place between him and the prisoner’s agent in that respect.

      Wheaton, for the prosecution,
    objected that the examination of the witness on this subject had been to a matter entirely collateral to the main issue, and that the defence were therefore bound by his answers and could not contradict them.

      D. Graham, for the prisoner,
    contended, first, that it was not collateral matter so that the defence was bound by the answer and, second, that the testimony was proper, independent of what the witness had said on his examination, as it might tend to show him governed by corrupt or revengeful feelings, and it would enable the jury to judge what credit to give him when they should learn that he had attempted to make money out of a transaction which had resulted in the death of his son.

      Wheaton, in reply,
    said that since our statute of 1847, which had given to the relatives of a person killed under circumstances which would constitute a trespass, a right to recover damages for the injury sustained by the loss of the deceased, it could be no impeachment to-, the credit of a witness to seek to avail himself of the benefit of the statute. •
    Edmonds, J. — I was not aware that the statute gave the remedy for damages in such cases as this. I supposed it was confined to cases of persons traveling in public conveyances. It grew out of injuries on railroads and steam boat accidents, but I see that it extends to all cases where death is caused by the wrongful act, neglect or default of any person or corporation, and the party injured, if living, might have maintained an action for the injury. And it is worthy of note to observe this return to a law which once prevailed among our ancestors, but which has been exploded for several hundred years. The Weregild of our Saxon ancestors was the fine set on a person’s head for the murder of a man. Tacitus speaks of it as having been found by the Romans to exist among the Northern Germans, from whom it was doubtless brought into England by the Saxons while pagans, and continued even after the Norman conquest until the introduction of the Christian religion, when it fell into disuse, it being regarded as contradictory to the divine law. Some years since I found the same law in existence among the northern native tribes on our continent.
    I once witnessed on the island of Michilimackinac the interesting ceremony of the “ Weregild” performed among some Indians inhabiting the borders of Lake Superior, and I had several times occasion in my then official capacity in settling claims against Indians, along that region of country from Lake Winnebago to Lake Superior, to make similar allowances which ! found was in pursuance of a well settled custom among them. But this is a digression, perhaps not an unnatural one. It is enough for the question now before me to know that such a law now prevails among us also, so that it could in no respect affect the credit of this witness that he was seeking to avail himself of its advantages. Yet if there was no such statute, this question has been settled by our court in 11 Wend. ( The People v. Genung.) That was an indictment for false pre-tences, and the defendant offered to show that during the sitting of the court the prosecutor had offered to the prisoner that if he would settle the subject matter of the indictment he would leave the court and not appear against him. The testimony was excluded and the supreme court sustained the decision on the ground that if the fact had been proved it could legitimately have had'no influence with the jury, for it did.not tend in the least degree to impeach the testimony of the witness or to show that his narration was not true. So far then as to one view in which this evidence is offered, namely, as independent of what the. witness may have testified on the subject, the testi mony would not be proper. But when offered to contradict his testimony, it has a different aspect. In the view which I have already stated, the question put on the cross-examination of this witness might have been objected to and perhaps excluded. But it was asked and answered without objection and the inquiry was fully gone into on both sides in order to ascertain the feelings with which he testified. That surely can not be called collateral, for any inquiry which is allowed having that object in view is pertinent and relevant to the main issue. In regard to such matters it is always open to contradict what the witness himself has said on the subject. With that view and to that extent the inquiry will now be allowed.
    The witness, John Shea, on his cross-examination, had been asked whether on the evening of the affray and immediately after his son had been shot, he had said to two men in his basement that he did not know who had fired the pistoll To which he had testified that he had not said so, but a good many persons had spoken to him that evening, that he did not know whether they were friends or enemies and had not been always particular as to what he did say.
    For the defence, a police officer was introduced who said he entered the basement directly upon the first alarm and saw the dead body lying on the floor, and he asked some questions of the witness Shea. ' His answers being offered in evidence,.
    Wheaton, for the prosecution,
    objected, because the proper foundation had not been laid, as the attention of the witness had not been particularly called to the police officer by name.
    Edmonds, J. — His attention was challenged to the particular circumstances and occasion, to every thing, indeed, except the name of the person to whom it is now alleged he made the declarations offered in evidence, so that he has had a full opportunity of recollecting and explaining what he has formerly said. The main thing is first to ask him, whether or no • he has said or declared that which is intended to be proved. A11 that has been done in this case, and the only omission has been the name of the person to whom the remark was made, and that person an entire stranger to the witness. That name was not necessary to enable the witness to know to what remark his attention was directed. The time, place and circumstances were all specifically mentioned, and they were enough to give him the required opportunity of explanation, having that, this inquiry now becomes proper.
    The evidence bearing on the offence charged in the indictment went to show, that on the evening in question the prisoner, with three of his companions, sallied out into the streets on a frolic, and after visiting five or six drinking- houses entered one in Leonard street, next door to the residence of the deceased, and on coming out passed the door of the basement occupied by the deceased’s mother as a porter house, and in which the deceased, two of his brothers, and a sailor were then engaged singing and carousing. As Austin was passing the door one of the inmates came out and invited him to go in and hear the singing, which he refused to do. After refusing repeated invi-. tations, he was taken by the collar and dragged into the basement. The door was then shut upon him and he was repeatedly urged to sing or to drink, but refused. One of his companions, the other defendant, Nesbitt, followed him into the basemenl and attempted to fasten the door open. A row then began, in the course of which Nesbitt fled from the room, and the brother of the deceased threw a tumbler and a pitcher at Austin, and struck him a severe blow on the forehead with a decanter. Austin retreated from the basement; he was followed by the sailor, and struck a blow with a chair. At about this time, but whether before or after the blow with the chair was not ascertained, some one fired twice into the basement from a six barreled revolving pistol. One of the balls took effect upon the deceased, who was then advancing with a chair uplifted towards the door through which Austin had retreated, and who died almost immediately, exclaiming as he fell and expired, “ Father, I am shot.” At about the same moment, but whether before or after the firing, the light in the basement was extinguished. It was from a lamp hanging over the bar, so low that Patrick Shea, who was standing by the bar, could easily extinguish it with a breath. After the firing, the prisoner retreated towards the police station house, distant about 100 feet from the scene of the affray. On the way which he had passed a pistol was afterwards found. Austin repaired directly to the station house, where he was met by the captain of the police, who, observing him to be very bloody, ordered him. to be taken care of and a physician to be sent for. On examining him it was found that he had received a very severe wound in the forehead with some sharp instrument which had cut through the rim of his hat. and which stupefied him, a hole was cut through one cheek, as if by a stab from an oyster knife, and various bruises on his head and body, showing that he had received at least nine blows. He was too ill from these wounds to be removed from the station house for several days, and several weeks elapsed before he arose from his bed.
    There was much contradictory evidence in the case. The father of the deceased swore positively to his having seen the prisoner firing the pistol from the sidewalk, after the affray was over, while other witnesses testified that he was an habitual drunkard; that he had gone to bed very drunk that afternoon, and was asleep in another room when the affray began, and was just rising from his bed as his son expired.
    It was also proved that the family of the Sheas was very debased, the daughter being a strumpet, the mother sharing with her the wages of her prostitution; the deceased had been a convict in the state prison, and his brother, one of the witnesses, was then in confinement on a charge of stealing, and ■that the house they kept had frequently attracted the notice of the police for its riotous and disorderly character.

      JD. and J. Graham,, of counsel for the prisoner,
    made the following points:
    I. In order to make homicide, by an act imminently dangerous to others, murder, it must be occasioned by an act committed when the mind is in the same mood as would be necessary to make the act murder if it was committed upon a particular individual, and there must be a preintention to -take human life, or else to do the act which must necessarily or may result in the death of some one.
    II. If the jury believe that the defendant fired the pistol, smarting under a provocation so recent as not to be under the infiuénce of reason, it is not murder.
    III. If the jury should 'believe the statement of John Shea, as to the door’s being opened after Austin was put out, and the pistol discharged into the basement, it would not be 'murder unless the time that elapsed between the defendant’s becoming disconnected from the violence of the inmates of the' basement and the firing of the pistol was a reasonable time for the cooling of human passion.
    IV. If the jury believe that the pistol was fired from the street, i. e. outside of the basement, and that the defendant was pursued there by -the violence of the inmates of the basement, and that there was reasonable ground for supposing that great personal injury would be done to him, and imminent danger of its being accomplished, it would be justifiable in law.
    V. If the judgment'of the defendant was so impaired by the violence of the injuries inflicted upon him, that the act of firing the pistol, though not necessary to guard himself against further injury, was rather the result of instinct than judgment or revenge, the act would be justifiable in law.
    VI. Where the loss of reason or deprivation of consciousness is the direct result of an injury, and not attributable to mere passion, an act committed while in such a state, is not an offence.
    VII. The basement of the Sheas being a public bar room, it was no trespass in the defendant to enter it.
    VIII. If the Sheas had the right to eject the defendant from the basement, owing to his misconduct, they were only entitled to use the kind of violence calculated to attain the end. Throwing a tumbler or decanter would not be justifiable, and would make those resorting to them, trespassers.
    IX. If the Sheas resorted to excessive or unnecessary violence, for the purpose of ejecting the defendant from the basement, they became trespassers in so doing, and the defendant would have the right to act in self-defence.
    X. If Austin discharged the pistol under an honest supposition that his life was in danger, or that some great personal injury was about to be done to him, he is not.guilty of an offence.
    XI. If the defendant, though in no danger of serious bodily harm, through fear, alarm or cowardice, discharged the pistol at the deceased, or .into the basement, under the impression that great bodily injury was about to be inflicted upon him, it is not an offence.

      J. McKeon (district attorney), and Wheaton, for the prosecution,
    made the following points:
    1. If the jury believe the prisoner armed himself with this deadly weapon, with an intent to use it against human life, if he.should get into an affray, and was induced or encouraged to provoke the affray in question or unnecessarily to continue it after it had been commenced by others, by the fact of his being thus armed, and did use it against the life of Timothy Shea, in ■ the manner proved by the witness, he is guilty of murder.
    2. That if the jury believe the prisoner was so far self-possessed as to be able to restrain his passion while in the basement receiving the blows, although his weapon was then at hand, and omitted to use it till he had got out of the basement and out of the more immediate view of the inmates, and then used it as proved by the witnesses, he has exhibited all the deliberation which the law requires to be guilty of murder.
   Edmonds, J.,

in charging the jury, said, that the first question for them to determine was, whether the prisoner had fired the pistol. This was sworn to positively by two witnesses: Shea, the father, and Clara King, a girl of the town, who was passing at the moment. The testimony of the father was not to be relied upon. His character, his intoxication,'his strong feelings and the falsehoods which had been proved against him, forbid the idea of giving much credit to .him. The testimony of the girl, however, had not been impeached, but had been corróbo-rated by several independent circumstances in the case, and particularly by the facts that all the witnesses unite in saying, the firing was from the very spot, where all agree that the prisoner was at the time; that the pistol when found was bloody, and that he alone of all the party was bleeding; that he had an inducement to do it, whether from motives of revenge or in self-defence; that the direction of both shots was from where Austin was, back upon those who had beat him; that the pistol was found at a spot which he had just passed; that he who fired the pistol wore a white hat, and that the prisoner alone had such a hat that evening. From these considerations, the jury must determine whether it was not the prisoner who fired the pistol, and in determining it, they must bear in mind that the evidence to satisfy them must exclude, to a moral certainty, every hypothesis but that of guilt, that the conviction of guilt must flow naturally from the facts proved and not by a forced or strained construction, and be consistent with all the facts, for 'if any one fact is utterly inconsistent with that conclusion it can not follow; and that, in case of doubt, it is safest to acquit, for the protection of innocence has an equal claim upon the administration of justice with the punishment of guilt.

If upon this question, the conclusion of the jury should be adverse to the prisoner, the next inquiry would be into the nature and quality of the act which should be thus established against him, and whether the homicide was justifiable or excusable, or was murder or manslaughter.

The homicide would be justifiable under our law, only in case it was committed by the prisoner when there was reasonable grounds to apprehend a design to do him some great personal injury, and there was imminent danger of such design being accomplished. But of this the jury were to be judges, not the prisoner, and it was for them to say from all the circumstances proved before them, whether there was reasonable ground for such apprehension, and whether there was, at the moment the fatal shot was fired, imminent danger that some great personal injury would have been done to the prisoner.

This would depend mainly upon the facts when and from what position the pistol was fired? If fired after the prisoner has escaped from the party in the house and after he had reached the sidewalk, it may have flowed from a spirit of revenge for the injuries under which he was smarting.

But if he fired before he had extricated himself from the party, who had thus forcibly drawn him into the building, and had there displayed towards him such unjustifiable violence, he might at the moment have very reasonably apprehended farther personal injury and might be justifiable in using the means at hand to protect himself from it.

There was, however, another view of the case in which the prisoner might be justified, even if he had fired the pistol after he had left the basement. One of the witnesses had testified that the prisoner had been followed from the basement by one of the party inside, and had been struck with a chair while ascending the steps on his retreat. If this were so, then the apprehension of personal injury would not cease with the prisoner’s leaving the basement, and the imminent danger in which he had been placed might have continued up to the moment of firing the pistol, and thus he be justified in firing it.

If the jury were not satisfied that it was justifiable, they were next to inquire whether it was excusable. It is so under our law when committed by accident or misfortune, in the heat of a passion upon a sudden and sufficient provocation, or upon a sudden combat without any dangerous weapon being used. The nature of the weapon used, and the manner in which it was used, must be mainly instrumental in determining this question.* Thus if, in the heat of passion, upon sufficient provocation or upon a sudden combat, a man had used his walking stick, or a butcher in his stall had used his knife that lay near him, or a cooper used the adze with which he was then at work, and had given a blow which was fatal, but without any intention to take life, the homicide might be excusable. But that could hardly be where the weapon used was of a dangerous character, constructed solely for the purpose of taking life and which could scarcely be fired off without hazarding it. If in the melee the r risoner had used the pistol as he might any other hard substance found at the instant in his pocket, by striking a blow with it calculated rather to w*und than- to kill, but had killed, it might be attributed to accident or misfortune. But that could not with propriety be predicated of the act of intentionally firing the pistol and unless such firing was justifiable, it was either murder or manslaughter.

Whether the act was murder or manslaughter under our statute, depended entirely upon the existence of an intention to kill either some particular person, or generally some one of a number of persons against whom in a mass the fatal act is perpetrated. There is only one homicide known to our law which becomes murder in the absence of an intention to effect death, and that is when the act is perpetrated by one then engaged in committing a felony. Except in that one case, no homicide is murder without an intention to kill and with such an intention, every homicide, with the single exception already mentioned, unless it be justifiable, is murder, whether the intention is formed on the instant or has long been entertained.

Such intention may be inferred from the act itself, for it may be one which of itself plainly indicates a heart regardless of social duty and fatally bent on mischief, and men are to be presumed to intend the natural and inevitable consequences of the acts which they willfully perform, but unless there be such an intention, the act can- not be more than manslaughter.

It would readily be perceived that this view of the statute had entirely superseded many of the rules of the law of homicide as it existed in England and which had been quoted on this occasion, and among them the whole doctrine of implied malice and the power of recent provocation to reduce the act from murder to manslaughter.

The English law provided very slight punishment for manslaughter, sometimes as low as the fine of a shilling and never beyond a year’s imprisonment. To remove from the operation of so inadequate a penalty acts of peculiar barbarity, such as that of the schoolmaster who whipped a scholar until it died, and that of the master chimney-swreeper whose boy stuck fast in the chimney and was killed by the violent manner in which he was pulled from the place, the English courts adopted the principle of implying malice, where there was. in fact no p.re? meditated design to take life. On the- Other hand, lest such a principle should extend too far, they adopted another principle, which gave to recent provocation, and the fact that the passions had not time to cool, the power o| modifying the acts from murder to manslaughter.

All this had been done away by- our statute. If the homicide had been perpetrated without an intention to kill it would be manslaughter and no more, except in the single case of its perpetration by one engaged in committing a felony. B.ut if perpetrated with an intention to kill, no matter how recent the provocation or how high the passions, it was murder. An act of homicide perpetrated with a premeditated design to effect death, though in the very highest flight of passion, and springing from even an existing provocation, can find no resting place in our statute except under the definition of murder or justifiable homicide, and the intention to- kilt being established, there is no degree or description of manslaughter in this statute which can embrace it.

That this is the intention of the statute is manifest not only from a careful perusal of all its enactments relative to homicide, but also from the recommendations- of the revisors. They proposed that murder should include a homicide when perpetrated from a premeditated design to do some great bodily injury, although without a design to effect death,, thus recognizing and adopting the principle of implied malice and defending it on the ground that the transaction would be such as would ordinarily lead to the result of taking life. But the legislature refused to adopt the suggestion and enacted a section, which, in the language of the revisors was “ founded on the great principle that to constitute murder there should be an express design to take life or such circumstances as to induce a very strong presumption of such a design.”

This view of the law will commend itself to our favorable regard, not merely because it confines the crime of murder within its legitimate bounds of a premeditated design to take life, but because it effectually destroys the doctrine of allowing sudden provocation and heat of passion to mitigate the offence, a doctrine most dangerous in its operation, because it tolerates the practice of carrying arms, and takes from the sudden use of them the consequences that ought justly to follow. No man can under our laws go habitually armed and in an affray use those arms with an intent to kill, without incurring the hazard of a conviction for murder, and no violence of provocation, no height of passion can mitigate or extenuate the offence. It will be murder if there is an intention to kill, unless self defence demands the sacrifice. The practice out of which this dase has sprung is ‘too pernicious to be tolerated. No life would have been taken, if the person who fired the pistol, whoever he might have been, had not gone into the affray with so deadly a weapon. The same remark is applicable to the last case tried in this court and the sooner this law becomes well known, and understood, and rigidly enforced, the better; for far better the land though stricken with poverty, where the unseen majesty of the law affords its sure protection to all,' and where the atmosphere of its supremacy pervades every tenement however humble, than that where gold may be gathered at every footstep, but where every man is armed to the death against his fellow, where every breath is drawn amid the rattling of armor, and every pulsation beats with the apprehension of instant conflict.

The inquiry, therefore, would be, was there a design to effect death? For if there was, however recent in birth, the offence was murder, but if there was an intention to wound only — a design to do some great bodily harm and not to kill, it was ’ manslaughter and no more.

The prisoner was acquitted.


source: Caselaw Access Project

license: Public Domain

text:
    Supreme Court. New York Special Term,
    December, 1848.
    Before Edmonds, Justice.
    In the matter of Joseph Belt, an alleged fugitive from service in the state of Maryland.
    In a proceeding on habeas corpus under the Revised Statutes, the averment of a person claimed as a fugitive from service that he is a freeman, is a suf ficient answer to the allegation by the claimant that such person is his slave, and a demurrer to such answer on the ground that it is argumentative and evasive will be overruled.
    In submitting proof of the claim to the alleged fugitive, the contemporaneous acts of the fugitive and the claimant during the period when the" relation of master and slave is said to have existed between them, may be shown by the claimant.
    The general rule of evidence in regard to the proof of the laws of the various states of the union, stated in Greenleaf’s Evidence, § 489, has not been adopted by the courts of the state of New York, and is not the rule therein, excepting so far as it is enacted by the act passed April 12, 1848, entitled “an act relative to the proof of the Statute and Common Law of other States, &c.” (p. 442).
    The provision of the new Code, that no person shall be excluded as a witness by reason of his interest in the event of the action, does not extend to cases of habeas corpus, and the claimant to an alleged fugitive from service can not testify in behalf of his claim.
    A general understanding that the laws of any state tolerate slavery, does not exempt a judge from requiring lawful evidence thereof, and failing to give such evidence the claimant of an alleged fugitive fails to establish the main point in his case, issue having been joined thereon that the person was bound to him in service.
    It being sufficiently proved that the alleged fugitive was bound in service to the claimant, yet, if the claimant, instead of removing him from the state without delay, has detained him in his own custody, that is a sufficient rea- * son why the person is entitled to his discharge. There is only one case in which a fugitive slave can be kept by his master in his personal charge in this state, and that is under the law of Congress, to take him without delay before the proper authority, in order to obtain the certificate necessary for his removal from the state. When it appears that the claimant holds his slave in this state, not for the purposes contemplated in the act of Congress, but that he holds him as his slave because he owes him servitude, it is the duty of the judge to order him to be discharged from custody.
    On the 21st day oí December, 1847, on an affidavit made by Thomas Peck, of the city of New York, setting forth, that on the 20th December (the day preceding),. Joseph Belt, while walking with the deponent in D.uane street, in the said city, was kidnapped by some persons, to the deponent unknown, and was carried, off; and that the deponent hadijust learned, that the said Belt was carried, to Gravesend,, on Long Island, by his kidnappers, and was there detained by their waiting for a change of wind, to be carried to the south as a fugitive slave; and that deponent believed that he would be carried out of the state before he could be relieved, by a writ of habeas corpus; a writ was issued by Judge Edmonds, in pursuance of the provisions of the Revised Statutes, addressed to the sheriff of Kings county, or to any policeman of the city of New York, reciting the facts set forth in the affidavit, and commanding the party addressed to take the said Joseph Belt, and him forthwith bring before the judge issuing the same at the City Hall of the city of New York, to be dealt with according to law.
    The sheriff of Kings count}1-, Daniel Voorhis, deputed Russell F. Hulse, a police officer of the city of New York, to execute the process; and Hulse, assisted by Samuel Wolven,. a police officer of the city of Brooklyn, proceeded immediately to Gravesend; and on the next day returned that he had executed the writ, and had the person named therein in custody.
    On the hearing before Judge Edmonds on the same day,. Mr. John Lee, of Maryland, with his counsel, James R. Whiting, appeared and claimed the custody of Belt as his fugitive slave, and prayed- time to put in a return to the writ in the form prescribed by law, which was duly granted, and the hearing postponed until the next morning, when the. following answer was put in.

      “ I, John Lee, of the county of Frederick, in the state of Maryland, don return to the annexed' writ, that a colored boy named Joseph Belt, the person now present, at the time of the service of said writ, was under my restraint, and that I claim to hold him under my restraint as a person held to labor and service due to me as a citizen of the state of Maryland. That said Belt is a fugitive from said state, and from my service in the said state of Maryland, under and by virtue of the laws of which state he is held to labor and service as a slave' to me..
    “ I do further return, that said, Joseph Belt ran away from me in the month of November, one thousand eight hundred and forty-seven. That at that time he was in Baltimore, in the said state of Maryland, in my service, and he- privately, against my knowledge and consent, with a view to effect his escape from my service, to which he was lawfully held, and (as 1 believe) proceeded to Lynn, in the state of Massachusetts, and from thence to the city of New York.
    “That on Wednesday last the 20th of December instant, I caused the said Belt to be arrested and brought to me, from which time and until the service of the annexed writ he was in my custody and control, as his master and owner, and I claim it to be the duty of your honor to restore the said Belt to my custody from whence he has been taken by the annexed writ, together with a certificate sufficient to warrant me in removing said slave and fugitive from labor to the state of Maryland aforesaid, from which he fled, without any further molestation or interruption. John Lee
    Sworn this 23d day of December, 1848.
    J. W. Edmonds.
    Accompanying the answer were the affidavits respectively made by Theodore C. Shadbolt, of the city of New York, and William Hunkey and H. R. Howlett, of Gravesend) in the county of Kings, stating that in conversation they had’ with Belt, he had admitted that he was the slave of Lee, that his master had brought him to Baltimore to sell, and that he had run away from him at Baltimore, and had gone from there to Lynn, near Boston, in the state of Massachusetts, whence he had come to the city of New York.

      John Jay, appeared as counsel for Belt,
    and asked time to put in a reply on his behalf, and the hearing was adjourned to the 26th December, when the following reply was made:
    “ I, Joseph Belt, not admitting that at any time I have been legally held to service or labor to John Lee, hut insisting that I am a free citizen of the United States, and not legally held to service or labor, do allege that whilst passing through Duane street in the city of New York, in the state of New York, on the 20th day of December, 1848, in company with Thomas Peck, about half past eight o’clock-in the morning, I was seized by two persons whom I believe to be Charles Bird and Sydney Clayton, and forcibly and violently thrust into a hack carriage, the door of which was immediately closed by the driver. That the question being asked why I was so seized, it was stated by the persons arresting me, that I was charged with stealing at the fire. That both myself and Peck denied having stolen any thing, and insisted that we had not been out on the night before, at which time the fire was said to have taken place. Not regarding this denial, handcuffs were placed by these men upon me, but as handcuffs were about being placed on one of the arms of Peck, he was ordered to get out of the hack, and was told he was not the man. Peck refused to get out of the hack, desiring to go with me, but at my request he left the hack to inform Mrs. Jackson, at whose house I boarded, of my arrest. The persons sn the hack told Peck they would take me to the Tombs, where he might find me. After Peck left I was carried to a hotel in Broadway, and then to the residence of Charles Bird, in El-dridge street, in the city of New York.
    “ The two men in the carriage who had hand-cuffed me, stated that they were going to take me to Long Island and keep me there until they caught some other person; that then they would bring me back to New-York and have me tried, but did not say for what they intended to try me. That at the hotel in Broadway, a man named John Lee came into the hack, and said to me, “ I will pay you for all this.” One of the men got out at the hotel when Lee entered the hack. On arriving at Eldridge street I was compelled to get out of the hack, go up stairs into a room, when Lee and Bird questioned me about the whereabouts of some person I knew nothing of. After remaining about fifteen minutes I was placed in the hack again with Bird and Clayton, and driven across a ferry in the East river and carried about ten miles to a village on the ocean beach. There I was placed in a room until Thursday evening, the 22d instant, when I was removed to another house, about a mile and a half distant from that I had been first placed in. I remained there by force and restraint until Friday morning about 1 o’clock when I was brought back to the city by officer Hulse, under the warrant issued by his Honor, John W. Ed-monds. I was deprived of my liberty without any process of law. The seizure of me in the public street was done in a riotous manner, in breach of the peace, with illegal violence. From the time of kidnapping by the said Bird and his associate Clayton, on Wednesday morning, the 20th instant, until Friday morning, the 22d instant, I was kept hand-cuffed and restrained of my liberty. When notice was given that officer Hulse had arrived with a warrant, Clayton hastily took off the hand-cuffs and asked me to get out of the window, intending as I believed, to recapture me; I declined to go out of the window; werit through the door into the adjoining room, and met officer Hulse.-
    I believe that Lee, Bird and Clayton have entered into a conspiracy to kidnap me, and carry me away out of the state of New-York. That Lee has promised to indemnify Bird and Cayton against any harm they might suffer from violation of the laws of the state of New-York. That the intention of all these parties was to keep me in irons in this state, secretly'and without the knowledge of the public authorities, until they had succeeded in kidnapping some other person. At no period since my arrest has any process of law for my arrest or detention been.exhibited to me or alleged to have been issued. At the time of my arrest I was not half a mile from the ferry to Jersey City, and the train for Philadelphia, which is the most direct’route for Baltimore in Maryland, did not leave until 9 o’clock A. M. That I have been informed and believe there were eight regular departures or modes of travel from this city to Philadelphia and southward between eight o’clock on the morning of the 20th December, and 1 o’clock A. M. of 22nd December, and there were other irregular departures. The village where I was detained, was, I believe, Gravesend, on Long Island, and is in a direction contrary to that of any route leading to Philadelphia and southward, and there are no regular means of communication from Gravesend to Philadelphia.
    Sworn this 26th day of December, 1848, his before me. Henry Vandervoort, Joseph ¡*í Belt. Clerk of Sessions, Sec. mark.
    To this reply, Lee put in a general demurrer.

      For the Demurrer. J. R. Whiting,

    upon the whole facts stated, contended —
    .1. That upon the pleadings in this cause, it was clearly to be inferred, that the boy Joseph was a.slave belonging to Mr. Lee; that the averment that he was a free man, was no answer to the allegation of Lee, that he was a slave; that the reply was argumentative and evasive; and he claimed of the court to decide that he was now a fugitive slave.
    2. That, if a slave, the master had a right, under the constitution of the United States, to -arrest him in this state, cither himself, or by the persons whom he employed, without warrant, and .take him home with him.
    3. That in the manner of the arrest, or in the-detention of the slave, though done as stated in the reply, there was nothing to impair his right to the slave; and he demanded of the court, that the boy should be-delivered to him as his -slave.
    In enforcing his claims, Mr. Whiting complained of those who -interposed in aid of the boy, as attempting to .rob Mr. Lee of his property, and agitating a subject which puts the union of the states in jeopardy. He cautioned all-concerned against being led-a way by sympathy.

      Jlgainst the Demurrer. John Jay, Jlsa Childs,
    lately of the Maryland bar, and John-McKeon, district attorney of the city and county of New-York (who appeared in the cause under the provisions of the statute of the State of New-York, passed May 6th, 1840, requiring the district attorney of .each county,-,upon due notice, to render his advice and .professional services in all proceedings for the recovery of alleged fugitives from service or labor), presented and argued the following points —
    I. This is not a proceeding under the act of congress for the delivery of fugitives. The alleged master has not come here voluntarily for a certificate, but he has been dragged here by force of law, on a complaint entered on behalf of Belt. That act, therefore, has nothing to do with these proceedings, and no certificate can be properly demanded under it. The judge will be governed by the provisions of the revised statutes (2 vol. 469, §40 and 41), and discharge the party unless legal cause be shown. Belt stands here as a free citizen of a free state, and the court will so regard him until the contrary be proved in accordance with the usual rules of evidence. Even admitting that he has been held as a slave by Lee, and has escaped from him, it does not follow that he was legally held. He may have been kidnapped from a free state, and reduced to slavery unjustly. {See Law of New-Yor/c of 1844, appointing agents to recover citizens who had been kidnapped.) His insisting, therefore, that he is not legally held to service, but is a free citizen, is a sufficient denial under 2d revised statutes {page 471, § 50). This is a matter affecting liberty, and every intendment is to be made in favor of freedom. The proceeding is a summary one, and the strict rules of pleading are not required to be followed, provided the sworn answers are sufficient in substance. The reply is, therefore good, and the demurrer should be overruled.
    II. Even if the reply of Belt be construed as admitting that he was the slave of Lee, which it does not; and if the court were sufficiently satisfied of that fact, which they can not be by any admission expressed or implied, still the other facts shown by the reply sufficiently show that the imprisonment in which he was found on the service of the writ was illegal:

      First. Recapture of slaves can only be made either under the act of congress of 1792, or under the constitution of the United States.
    Belt was not captured under the act, for he was not taken before a magistrate, nor any certifícale obtained for his removal. His capture, to have been legal, must, therefore, have been under the power conferred by the constitution. But if the constitution does give such right, it gives it only where it can be done without a breach of the peace or illegal violence. (In re Kirk, 4 Jf. ¥. Leg. Obs., 459, quoting Prigg v. Commonwealth of Pennsylvania, 16 Peters, 539.) The owner’s privilege being in derogation of state rights — the rights of every free citizen are to be preserved— the power to seize the slave is coupled with the condition that there be no illegal violence; and if the condition is broken in the execution of the power, the power is gone, and the arrest is void. Here there was illegal violence towards a free citizen, Peck, in the arrest of Belt; and an infringement upon the public peace; and the arrest of Belt was therefore illegal ab initio, and any subsequent detention under it void

      Second. The answer shows the detention to have been illegal, even if the arrest were good. The power of recapturing slaves, is in derogation of state sovereignty and common law right, and must be strictly followed. It is given simply for the purpose of removing the slave to the state from whence he fled. (See Act of Congress, 1792.) The owner is entitled to reasonable time to recover his slave, but may not detain him here for his convenience. Here, no intention immediately to remove the boy appears, but the contrary. Belt was taken from the city of New York, the usual port of departure where opportunities for removal abound, to a remote village, and moved from house to house for the purposes of confinement and concealment, until an indefinite period, when some other alleged slave should have been captured. Such detention can not be justified under the facts shown, nor could it have been justified if a certificate had been previously obtained by Lee under the act of congress, for such certificate warrants not the detention of the slave in the state, but only the removal of the slave out of the state. (See Revised Statutes, 662 [repealed], that slaves became free if continued here beyond time specified; and Act of May 6,1840, Gen. Stat. page 330, §7, that the removal must be by direct route.]

      And under the principle settled in the case of slaves (18 Pickering), the voluntary detention of Belt in a free state by his master, entitles him to his freedom.

      Third. If the demurrer is overruled, and the reply held sufficient, Belt is entitled to be immediately discharged. The reply shows his right to freedom, -apart from any facts that might be produced touching his former condition, and as it is in the discretion of the court to decide finally on the present hearing, they will not detain an innocent man, who is to be held free until proved to be a slave, in order to allow the respondent to procure or manufacture proofs of his having been once a slave. He should have brought legal proofs when he first came to arrest him.
    The counsel for Belt, in reply to the charge of interference with the constitutional rights of the claimant, maintained that the claimant admitting Belt to have been his slave, had, in his arrest and detention in the manner proven, overstepped the farthest limits of his authority, and committed an outrage upon the dignity of the state of New York, and the peace and quiet of its citizens.

      Whiting, in reply —
    quoted Sergeant on the Constitution, ch 31, page 387; Glen v. Hoages, 9 Johnson, R. 69; Wright v. Dean, 5 Ser. 8f Rawle, 62; Commonwealth, <§rc. v. Griffin, 3 M’Lean, 480.
    The court after taking time for examination overruled the demurrer, adjudging the reply sufficient, and allowed Lee-to submit proof in support of his claim.
    Thomas Lee, sworn as a witness for the claimant. — -I reside in Frederick county, Maryland, and have resided there all my life. I am twenty-nine years old, and am nephew of the claimant. I know Belt perfecty. He is the man now here. I have known him as long as I can recollect, upon the estate of the claimant in Frederick county, Maryland, where he resides. He was always on that estate when I knew him; he was born ihe slave of John Lee, and was always in his service; I knew his mother, who was also in his service; she was a slave also. I knew his grandmother; she was on the same estate, and is still living. Belt is about twenty-two years old. I saw him last until yesterday in the railroad cars going to Baltimore; Lee was with him. I am pretty well acquainted with the laws of Maryland.

      Question by counsel for claimant. — Do those laws authorize slavery?
    To this question the counsel for Belt objected, and after an argument thereon, the court overruled the objection and allowed the question to be put.

      Answer. — Yes, sir, they do.

      Question by counsel for claimant. — Do you hold slaves under those laws?
    Objected to, and the objection sustained by the court.

      Cross-examined, by McKeon of counsel for Belt. — Mr. Lee sold Belt’s mother as a slave. My estate joins that of Mr. Lee. I know the boy was not born in New York or Pennsylvania, but I was not present at his birth.

      Direct examination resumed. — Belt went to Baltimore as a house servant.

      Question. — Did your ever hear of Belt’s claiming to be free from the service of the claimant?
    To this question the counsel for Belt objected, insisting that no previous acts or expressions of Belt could be received as evidence to prove that he was a slave; and after hearing an argument on the point, the court overruled the objection, and declared that the contemporaneous acts of the parties might be shown.

      Direct examination resumed. — I never heard of Belt’s claiming to be a free man. I have heard Belt call Mr. Lee master. Belt was always considered by the other slaves on the estate as a slave. People resident there are acquainted with each other’s slaves in the neighborhood. Belt was always reputed in the neighborhood to be a slave. I have not the slightest doubt as to Bell’s identity

      Cross-examination resumed. — Belt is a mulatto.

    The counsel for the claimant here offered the laws of Maryland from their statute book, and objection being made by the counsel for Belt, quoted 1 Greenleaf on Evidence, § 489, an 1 the decisions there quoted being held' by the court to be inapplicable to the state of New York, á different rule having been adopted by the courts of that state, the counsel referred to a recent statute of the state of New York, passed April 12,1848, entitled “ An Act relative to the proof of the statute and common law of other states and territories.” “ § 1. Printed volumes, copies of the statute laws of any other of the United States or of the territories thereof, if purporting to be published under the authority of the respective governments, or if commonly admitted and read as evidence in their courts, shall be admitted .in all courts of law and on all other occasions in this state as prima facie evidence of such laws.”
    The volume offered in evidence was objected to by the counsel for Belt on the ground that it did not appear that it was published “ by the authority of the government of Maryland,” and there was no evidence that it was a volume commonly admitted and read in their courts. The counsel for the claimant proposed to prove by a resident of Maryland, that the volume offered was the regularly authorized edition of the law's of the state, and as such was recognized and read in their courts, and for this purpose called, as a witness,

      John Lee, the claimant in person,
    whom he was about to examine, when Jay on behalf of Belt objected on the ground that Mr. Lee being directly interested in the result was utterly incompetent to testify in the matter.

      Whiting. By the new code no person is excluded by reason of his interest in the event of the action. Mr. Lee is perfectly competent.

      Jay. If the code authorizes the claimant in a matter involving personal liberty to testify in his own behalf, it is clearly unconstitutional. Our common law rights in this matter are part of the constitution, and are not to be overthrown by an act of the legislature.

      The Court. Whatever may be thought of the code generally, it is not unconstitutional, for it expressly excepts the new rule of evidence from all cases of this kind, and the testimony of Mr. Lee is inadmissible.

      Whiting. 1 will then call Mr. Child.

      Asa Child, Sworn. I have practiced law in Baltimore. In Maryland they have books of law similar to this, which purport to be published by authority, which are read in their courts as evidence.
    I did not know Jeremiah Hughes. I am not aware that this is a copy of the books thus read. I have seen similar volumes that are lead in the courts of Maryland that look like this.

      By the Court. I can not say that this volume is a copy of those commonly admitted and read in evidence in their courts.
    The testimony on the part of the claimant here closed, and

      Child moved on the facts as they stood to dismiss the prisoner.

      Jay, in support of the motion, was stopped by the court.

      Whiting, on behalf of the claimant,
    argued at length the following points:
    1. That the judge had no jurisdiction to take the boy out of his master’s custody. (Prigg v. Commonwealth of Pennsylvania, 16 Peters. Case of Jack, 12 & 14 Wendell’s R. In re Kirk, 4 N. Y. Legal Obs.)

      2. That in a slave state, all colored men are presumed to be slaves; and that the same presumption must be allowed here. (Jones v. Van Zandt, 2 M’Lean, 596; 1 Washington’s C. C. R. 308; 2 Wend. 1.)
   By the Court:

Edmonds, J.,

said he would not trouble the counsel for the prisoner to argue the case. There were two points on. which his mind was very clear,, and which were decisive of the question before him..

In the first place, it was necessary for the claimant to establish the fact, that the prisoner was bound to service. The evidence was satisfactory that he had been held, to service in Maryland, but there was no evidence, that under the laws of that state he was hound to service.

The claimant had failed to prove the laws of Maryland in such a manner as under the rules of evidence, to permit them to be- referred, to, and he could not therefor', know or hold that by those laws, slavery was tolerated in that state. It was true, it was generally understood that it was, but upon any such general understanding no judge could act. There must be lawful evidence thereof, and that the claimant had failed to give. He had, therefore, failed to establish the main point in his case, and on which the issue has been joined, namely, that Belt was bound to him in service.

But even if that had been sufficiently proved, there was another reason why the prisoner was entitled to his discharge, and that arose from the manner in which he was detained by his master.

There was only one case in which a fugitive slave could be held by his master, in his personal custody, in this state. That was under the law of congress to take him without delay before the proper authorities, in order to obtain the certificate necessary to justify his removal out of the state. This had not heen done in this case. Instead of taking Belt before the United States District Judge, the claimant had removed him to a distance. Instead of taking him there without delay, he had detained him in his own custody for two days. Instead of seeking a judicial determination on his claim to the boy’s services, he had withdrawn him to a distance and concealed him. And now on his return he claims, not that he holds him under the act of congress for the purposes contemplated in that statute, but that he holds him as his slave, because he owes him servitude. If he can do this for two days, he can for two years or twenty. To justify this, would warrant every slaveholder in the nation to hold his slaves in this state as long as he pleases, notwithstanding that slavery was unknown to our laws.

As the claimant then avowed that he held the boy not in conformity to the act of congress, but in contravention of it, it was the duty of the judge to order him to be discharged from that custody.

In doing so, however, the judge said he must not be understood as attempting to decide the question, whether the boy was actually a slave, or w'hether his master had or had not the right to enforce his return to his service, under the laws of congress. These were questions not before him, and on them he expressed no opinion. He merely intended to decide that the boy was entitled to be discharged from his present restraint, because that restraint was not in conformity to the laws of congress, or the laws of this state.

Discharge ordered


author: Marvin, J. —

text:
    Supreme Court. Erie General Term,
    November, 1848.

      Hoyt, Mullett and Marvin, Justices.
    Burns and Cary plaintiffs in error vs. The People defendants in error.
    A trial and conviction, before a court of Special Sessions, for an assault and battery, are no bar to a subsequent indictment for manslaughter, where the person assaulted dies subsequently, of the wounds caused by the blows, for inflicting which the complaint for assault and battery was made.
    A former trial is no bar, unless the first indictment was such as the accused might have been convicted upon, by proof of the facts set forth in the second indictment. To constitute a bar the offence charged in both indictments must be identically the same in law as well as in fact.

      Held, that upon the trial of an indictment for murder where death has ensued, the accused can not be convicted of a simple assault and battery,- though he may be of manslaughter.
    Error to the recorder’s court of the city of Buffalo.
    The plaintiffs in error and one Michael Tracy were indicted at the recorder’s court in March, 1847, for manslaughter, in killing one Clark Cromb, by blows inflicted on him the 19th day of February, 1847, of which injuries he died on the 9th day of March, 1847.
    Burns and Cary, on being arraigned, pleaded separately, in bar, that they were, on the 20th day of February, 1847, arrested by virtue of a warrant issued by a justice of the peace, on the complaint of Clark Cromb, for an assault and battery committed upon him on the 19th day of February, and were brought before the said justice; that they then pleaded not guilty and elected to be tried by and before the justice, who proceeded to the trial of the issue, and that such proceedings were had before the justice that he adjudged and determined them guilty of the offence charged, and then and there ordered and adjudged each of them to pay a fine of five dollars, &c. There were averments of the jurisdiction of the justice, the identity of the offence, and that the judgment of the justice still remains in full force, &c. To the plea of each defendant, the counsel for the people demurred, and assigned for causes of demurrer:
    1. That it does not- appear from the plea, that the offence for which they were tried before the justice, was the same offence charged in the indictment;
    2. That it does not appear from the plea that the court of special sessions had jurisdiction to try the offence charged in the indictment. Joinder in demurrer.
    The recorder’s court gave judgment for the people, and the defendants sued out a writ of error.

      Eli Cook, for plaintiffs in error.

      B. Austin (district attorney), for the people.
   By the Court,

Marvin, J. —

It is insisted by the plaintiffs in error, that they bring themselves within the provision of the constitution, that “ no person shall be subject to be twice put in jeopardy for the same offence.” This provision is a fundamental maxim in criminal jurisprudence. It is derived from the ancient and well established principles of the common law, and was ratified by magna charta. When' this principle is appealed to, as a bar to further proceedings, in a criminal prosecution, the inquiry always arises, has the party in fact been put in jeopardy for the same offence"? To sustain the plea of a former acquittal, it must appear that the party was “ put in jeopardy” by the former trial; thus, if the indictment upon which he had been tried, was" so defective that no judgment could have been given upon it, it would not, at common law, constitute a bar. (1 J. R. 66; 1 Russ, on Cr. 836.)

But now by our R. S. (V. 2, p. 702, 325) if the party be tried and acquitted upon the merits, it will be a bar. So it will not be a bar if the court had no jurisdiction to try the offence. (1 Russ, on Cr. 836.) Or if the jury has been discharged without rendering a verdict. (People v. Goodwin, 18 J. R. 187; 9 Mass. R. 494; U. S. v. Perez. 9 Wheat. R. 579.) Or if there has been a- failure of the trial for any other cause. (12 Pick. R• 496.)

The former acquittal or conviction must have been “ for the same identical act and crime.” (4 Black. Com. 336; 1 Russ. on Cr. 836, 829.)

The plea of a former acquittal will not be good, unless the facts charged in the second indictment would, if they had been established on the trial of the first indictment, have sustained it. The rule is thus stated by Justice Buller, in Rex v. Vandercomb, cited in-1 Rhss. on Cr. 831, “ Unless the first indictment was such as the prisoner might have been convicted upon, by proof of the facts contained in the second indictment, an acquittal on the first indictment can be no bar ta the second.” (See also Arch. Cr. Pl. 87, &c.; King v. Taylor, 3 Barn. & Cress. 502.) Mr. Chitty (1 Chit. Cr. Law, 452) states the rule thus, “To entitle the defendant to this plea, it is necessary that' the crime charged be precisely the same;” “ if the crimes charged in the former and present prosecution are so distinct, that evidence of the one will not support rhe other, it is inconsistent with reason, as it is repugnant to the rules of law, to say that the offences are so far the same, that the acquittal of the one will be a bar to the prosecution for the other.” (See Commonwealth v. Raby, 12 Pick. 496.)

In the case last cited, Chief Justice Shaw says, “ In considering the identity of the offences, it must appear by the plea that the offence charged in both cases was the same in law and in fact. The plea will be vicious if the offences charged in the two indictments be perfectly distinct in point of law, however nearly they may be connected in fact.” This case is in point. Raby was convicted in July, 1831, upon an indictment for a felonious assault upon Maria Leonard on the 2d day of May, with intent to kill and murder her. After this conviction Leonard died, and in November Raby was indicted for murder. He pleaded in bar the former trial and conviction. The plea was overruled, and it was held that the conviction for the assault with intent to murder, could not be plead in bar of an indictment for murder, on the ground that the offences are distinct in their legal character. The court say, “The indictment for murder necessarily charges the fact of killing as the essential and most material fact, which gives its legal character to the offence.”

If the party assaulted, after a felonious attempt, dies within a year and a day, the same act which, till its death, was an assault and misdemeanor only, though aggravated, is by that event shown to have heen a mortal wound. The event, strictly speaking, does not change the character of the act, but it relates back to the time of the assault and the same act, which might be a felonious assault only, had the party not died, is in truth shown by that event to have been a mortal wound, and the erime, which would otherwise have been an aggravated misdemeanor, is thus shown to be a capital felony.

The facts are essentially different and the legal character of the crime essentially different. In the case under consideration, the indictment contains facts which did not exist at the time the prisoners were on trial before the justice for a simple assault and battery, facts which entirely change the character of the crime. Cromb was then living, he is now dead, and, as the indictment stated, the defendants did feloniously and willfully kill and slay him. The acts of the defendants are the same, but the event has shown that those acts were felonious. The event relates back to the acts and gives them a new character, and if this indictment be a. true bill, the prisoners were never guilty of an assault and battery, as the misdemeanor is merged in the higher offence of felony. (1 Russ. on Cr. 50, v. 2, 550; Bouvier’s Law Dict, title Merger Cr. L.)

It was argued by the counsel for the plaintiffs in error, that if the jury should acquit them of the offence charged in the indictment, they may still be convicted of the assault and battery, and thus be a second time punished for the same offence. He referred 'us to 2 R. S. 702, § 27, which provides that upon an indictment for an offence, consisting of different charges, the jury may find the accused not guilty of the offence in the degree charged in the indictment, and may find such accused person guilty of any degree of such offence, inferior to that charged in the indictment, or of an attempt to commit such offence. The indictment charges a homicide; a felonious and willful killing and slaying. An assault and battery can not be “ any degree of such offence.” The killing of a human being without authority of law is either murder, manslaughter, or excusable or justifiable homicide, according to the facts or circumstances in each case. (2 R. S. 656, §4.) In murder there are no different degrees, but in manslaughter there are four degrees as declared and defined by the statute. Homicide embraces all mankilling, and murder is the highest degree. Manslaughter is another degree or class of homicide, and is a degree lower than murder. Both are felonies, and upon an indictment for murder, the accused may be convicted pf any degree of manslaughter, but he can not be convicted of a simple assault and battery, for when death has ensued from the beating, the homicide is murder, manslaughter, or excusable or justifiable. If the killing was excusable or justifiable, then the accused can not be convicted of any offence. If the killing was not excusable or justifiable, then the offence would be murder or manslaughter, a felony, in which crime the assault and battery would be merged; and in such a case, if the accused were indicted for a simple assault and battery, it would be the duty of the jury to acquit him, and he might be indicted, tried and convicted of the murder or manslaughter, as the case might be, The judgment of the recorder’s court should be affirmed.

Judgment affirmed


text:
    Supreme Court. At Chambers.
    Before Edmonds, Justice.
    November, 1848.
    The People vs. Mary Martin and Caroline Martin.
    On habeas corpus, how far the court or officer granting it, is bound by the return, or may go behind it.
    In criminal cases where an indictment has been found, he can not go behind the indictment, because there are no means of ascertaining upon what the indictment was founded.
    But on a commitment before indictment, the whole question of guilt or innocence is open for examination on the return to the writ of habeas corpus, and the inquiry is not necessarily confined to an examination of the original depositions.
    In such cases, under our revised statutes, the proceedings on a habeas corpus aiv in the nature of an appeal from the decision of the committing magistrate.
    On the return to a writ of habeas corpus sued out for the prisoners, it appeared they were detained on a full warrant of commitment for trial on a charge of grand larceny issued by one of the police magistrates of the city.
    They filed their allegations in answer to the return, setting up that they were arrested without warrant by a person not a police officer. That when taken before the magistrate, he refused to examine the complainant in their presence, though they demanded it and committed them for trial. The allegations also averred the innocence of the accused, and that the money they were accused of stealing, was given to them under pretence of teaching French, but really for purposes of seduction.
    On filing these allegations, McKern, district attorney, and
      Galbraith, i'or the prosecution, insisted, that the warrant of commitment being regular on its-face, was conclusive on habeas corpus,, and no inquiry could extend behind it

      Jl. Nash, contra.
   January 8, 1849,

Edmonds, J.,

delivered his opinion. — It is claimed in this case, in behalf of the prosecution, that the commitment of the magistrate is conclusive upon me, and that I have no right on this return to loot beyond the question of its regularity or that if I do look beyond it, I can look only at the depositions taken before the magistrate.

I had understood the law otherwise, and have always supposed that by means of this writ, the officers who were authorized to allow it, were by its verjr nature clothed with a certain revisory power over those by whose mandate any person might be restrained of his liberty.

The earnest manner in which, however, the contrary doctrine was pressed upon my attention, the construction which has been put upon the decision of this court in the McLeod case, and the fact that the legislature has, once at least (by depriving the judges of the superior tribunals, of the power of revising the action of the committing magistrate in fixing the amount of bail), departed from the great principles of the habeas corpus law, have caused, me to hesitate in yielding to my first impressions, which I confess were rather the fruits of the reading of my early boyhood than of riper years, and have induced me, at some labor, to review the law on this subject at large. I, by no means, regret this, though it has been somewhat difficult to find among the pressing nature of my other avocations, time enough to devote to a task involving so extended an examination as I have given the subject, for an accurate and intimate knowledge of the properties of this great instrument of personal liberty, the writ of habeas corpus, can not but be valuable to every citizen.

The language of our statute, of writs of habeas corrms and certiorari, when issued to inquire into the cause of detention” (2 R. S. 567), is not sufficiently definite to leave no room for doubt on this question. Every person committed, detained, confined or restrained of his liberty under any pretence whatever (except in a few enumerated cases), may, it is true, prosecute this writ. On the return of the writ, the facts contained in the return may be examined into as well as the cause of the confinement, and if no legal cause be shown therefor, the party may be discharged, (Ib. 567.) Upon these enactments, for they are not new, it has been held that the officer allowing the writ out of court could not go behind the return. To remedy that, section 50 was enacted (Ib. 569), giving to thé imprisoned party the power to deny any material fact set forth in the return, or to allege any fact to show the detention illegal or that the party was entitled to his discharge, whereupon, the officer may hear such allegations and proofs, as may be produced in support of the detention or against the same, and dispose of the party as the justice of the case may require.

This language is broad enough to confer upon the officer the most ample power on habeas corpus, to inquire into the guilt or innocence of the party as to the offence charged, for on that, if his detention be not illegal, he may be entitled to his discharge. But it has been held that on habeas corpus, the court .or officer will not try the question of guilt or innocence. (1 Ch. Cr. L. 130.)

And Cowen, J., in McLeod’s case (1 Hill R. 394), is very explicit in laying down the same doctrine, and he declares that the provision of the statute which I have quoted, would be satisfied by being limited to the lawfulness of the authority under which the prisoner is detained, without being extended to the force of the evidence upon which the authority was exerted. {Ibid, 404.)

And in the statute to which I have referred, I mean the police law relative to this city, the legislature have gone some ways to sanction the same doctrine. So that with this positive enactment in the police law, and this construction of the habeas corpus act, the power of the committing magistrate as to the question of guilt or innocence, and as to the amount of bail to be required, would become absolute, irreversible and above all review. A power of this extent would ride over all the courts in the land, and become perfectly despotic, if it was not subject to review and inspection.

I have already had practical evidence of the result of such a state of the law. In one case brought before me, the committing magistrate had refused to let a party to bail, who was accused merely of a breach of the peace; thus arbitrarily, and as it was insisted before me, without the possibility of review or correction, putting assault and battery upon an equal footing with murder. In another case of assault and battery, the magistrate had fixed the amount of bail at some $ 16,000, and I was admonished that under that police law, I incurred the danger of committing a misdemeanor, if I reduced the amount. So that I was placed in the dilemma of running the hazard of an indictment or of violating my oath of office and the constitution, which forbids excessive bail. Of course I incurred the hazard, but not without some reflection upon the character of legislation which could thus jeopard personal liberty, and at the same time place a judge of the highest criminal court in the state, in such a position, that he could carry out the constitution only by incurring the hazard of becoming himself a criminal at his own bar.

Such cases must and will occur again, if the law is such as to sanction them, and I have therefore been the more anxious in my researches, in order to ascertain with certainty, whether such is, in fact, the state of the law among us.

I have already intimated that the language of Mr. Justice Cowen, in McLeod’s case, was broad enough to sustain this doctrine, and if that was an authoritative decision of the court upon the point, I should be bound to obey it as the law of the land until it should be reversed by an appellate tribunal or altered by the legislature. But fortunately that language is entitled to no such binding force. That point was not before the court. The dictum was obiter. The question raised there was, whether, after indictment, the court on habeas corpus, would entertain the question of guilt or innocence, and on that question the authorities had been very uniform, that it would not; and for very plain and simple reasons, that as the testimony before the grand jury would not be written and could not be looked into, the court or officer on the habeas corpus could not ascertain on what evidence the grand jury had acted, and could not entertain the question without receiving precisely the same testimony which the jury would be obliged to receive on the trial, and thus, in fact, usurp the province of the jury. Hence it had been the practice of the English courts and our own, which was followed in the McLeod case, not to look into this question of guilt or innocence on habeas corpus, after indictment. But not so where the party was committed by the magistrate, nor even where he was committed on the coroner’s inquest, because there were depositions which could, be looked into. But even to this rule there were exceptions. Bac. Abr. Hab. Cor. B. sec. 11, says, that the court will sometimes after indictment examine the circumstances, and he cites the case of one indicted for piracy who was bailed because it appeared that it was the prosecutor himself who had committed the offence. In Rex v. Crips, referred to in Cunningham’s Rep. 96, the party was bailed because of a mistake of the person of the party accused.

I do not, however, understand the rule, whether it has few or many exceptions, to deny the power after indictment to look beyond the commitment. It merely says, that the court will not, not that it can not do so, and for very good reasons, as I have already mentioned. For equally good reasons it may and does do so, as is shown by the many cases where after delay to bring on the trial of an indictment, the party has been discharged or bailed.

This rule, however stringent it may be held to be after indictment found, is by no means so, where the party is detained merely on the warrant of the committing magistrate. Ch. J. Marshall recognized this distinction in Burr’s case. In Benoit’s case (1 Martin’s Lou. R. 142), the court looked into the testimony to see whether an illogical conclusion had not been drawn. Chitty lays, down the rule (1 Cr. Law, 119), where a person committed is advised that his commitment is illegal he may obtain relief by habeas corpus, and the proceedings thereon, which is the only course of proceeding, indeed, wherever a person is restrained of his liberty, by being confined, whether it be for a civil or criminal cause, and it is apprehended that the imprisonment is illegal, he may regularly, by habeas corpus, have his body and the proceedings under which he is detained, removed to some superior jurisdiction having authority to examine the legality of the commitment, and upon the return to the writ the court are to examine and determine the legality of such commitment and do what to justice shall appertain in delivering, bailing or remanding him.

And 'he adds (page 129), if the court ascertain there was no pretence for imputing to the prisoner any indictable offence, they will discharge him. Even though the commitment be regular, the court will examine the proceedings and if the evidence appear altogether insufficient, will admit'him-to bait, for the court will rather look to the depositions-which contain the evidence than to the commitment in which the justice may have come to a false conclusion.

Such is the English rule, thus stated by this respectable writer and sustained by abundant authority, and it necessarily confers on this writ an appellate attribute, and upon the court or officer to whom it is returned power to review the proceedings of the inferior magistrate on whose warrant a person may be -committed.

The rule is the same in this country, and no stronger.evidence of it need be given than the view which the United States'Supreme Court have taken of-it.

That court has, under the constitution, original jurisdiction otily in cases affecting ambassadors and the like, and those in which a state shall -be a party. In all other cases it has.only appellate power. The judiciary act conferred upon it, -and upon the judges thereof, power to issue writs of habeas corpus _a power which they could not exercise unless the writ had properly an appellate character.

The question has frequently been before that court and its appellate character has been repeatedly maintained. (Bollman and Swartwout, 4 Cranch, 75; Ex parte Kearney,7 Wheat. 42; Ex parte Watkins, 7 Peters, 200, where Ch. J. Marshall says it is in the nature of a writ of error which brings up the body with the cause of commitment; Ex parte Burford, 3 Cranch, 447; In the matter of Metzger, 5 Howard, 176; Ex parte Barry, 2 Howard, 65.) It is an essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create the cause. (Marbury v. Madison, 1 Cranch, 175.)

The United 'States Supreme Court has no common law jurisdiction. It owes all its powers to the constitution and the statutes, and so far as the habeas corpus is concerned, uses the writ only as it ministers to its appellate jurisdiction.

Our supreme court is, however, different in this respect. It has all the. common law powers of the King’s Bench, in which this remedial writ has been one of its instruments of administering justice for very many years, and the judges out of court have the same authority conferred on them by statute.

Under the common law powers it has always been competent for the court in term to inquire in the broadest manner into the legality of the imprisonment and for that purpose to go behind the return. The books are full of such cases, and the refusal of the king or the lords in council, or in other words that courts giving to the warrant of the king and the star chamber the same binding and controlling force which in this case is claimed for the warrant of a police justice, was a prolific source of trouble in the reign of Charles I, drew on a parliamentary inquiry and produced the petition of right (3 Car. 1), which recites this illegal judgment and enacts that no freeman shall be so imprisoned and detained. (3 Bl. Com. 134.)

The revision of our habeas corpus law in 1813, extended its provisions to persons detained on civil process, while the English statute, from which ours had been copied, confined it to criminal cases.

Our court, in Cable v. Cooper (15 J. R. 152), upon this new provision of the statute, gave a similar construction and denied to an officer or judge acting upon a habeas corpus out of term the power of looking beyond the return. This decision was made in January, 1818, and the legislature, with commendable promptness and in close imitation of the action which as before mentioned, “produced the. petition of right,” in the same session passed a law correcting that judgment.

The act passed April 21, 1818, recites that “ Whereas doubts are also entertained whether returns made to writs of habeas corpus issued under said act are traversible or examinable by facts dehors the returns,” and enacts that the officer before whom a prisoner is brought shall examine into the facts contained in the return, and into the cause of the imprisonment, and remand, bail or discharge, as the case shall require, and to justice shall appertain. (Laws of 1818, Ch. 277, p. 298.) Out of this enactment grew the existing provision of the revised statutes authorizing the prisoner to deny any of the material facts set forth in the return, or allege any fact to show that his detention or imprisonment is unlawful, or that he is entitled to his discharge. (2 R. S. 471, §50.) The note to 3 Hill, 658, n. 30, says, that “ when the return is that a party is detained by process, the existence and validity of the process are the only facts upon which issue can be taken. These alone are the material facts within § 50, not whether the process is founded on sufficient evidence or any evidence at all.” If this is so, then is the principle of Calle and Cooper, 15 J. R., restored, the act of 1818 reversing that case rendered nugatory, and § 50 of our habeas corpus law shorn of very much of its benignant power. But it is not so. The cases cited by the writer do not sustain his position. 9 Wend. 212, one of his cases, was on a requisition from another state for a fugitive from justice, in which the court refused to look behind the warrant, because that would in effect be removing the trial of the merits from the other state to this. The case of McLeod, another one he cites, I have already shown was, in this regard, nothing more than a refusal of the court to go behind an indictment; and his remaining authority (11 Ad. & Ellis, 274 § 3) was upon the power conferred by an English statute, in respect to which the court in that cause say, “ if the warrant returned be good on the face of it, we can inquire no farther.” Can that be said of a statute which had its existence in a desire to remove doubts whether facts out of the return could be inquired into, and which, to effect its purpose, declares that the prisoner may allege any facts to show his detention illegal or that he is entitled to his discharge?

On commitments by final process upon summary convictions, it has long been the practice to examine on habeas corpus the record of conviction, and if void to discharge the prisoner. (Regina v. Chancey, 6 Dowl. P. C. 281, 1 Mod. 102; In re Sweatman, 1 Cow. 144, Bac. Abr. Hab. Cor. B. Pl. 13; In re Eliza Phillips, 5 N. Y. Legal Observer, 130; Rex v. Elwell, 2 Str. 794.) And indeed final process may in all cases be impeached by showing either that there was no judgment, decree, conviction, &c., or that the judgment, &c., was absolutely void. ( Randolph Case, 11 Am. Jurist, 338; Ex parte Beatty, 12 Wend. 229; Riley’s Case, 2 Pick. 172.)

So, too, where the warrant wras legal but the party illegally arrested upon it, (Pleasant’s Case, 11 Am. Jurist, 257; Ex parte Beeching, 6 Dowl, and R. 209,) Or was entitled to his discharge by something occurring after his arrest. (McLeod’s Case, 25 Wend. 572; State v. Ward. 3 Halst. R. 120.)

And in all cases, even before our act of 1818, and at common law, the prisoner before indictment might insist that the depositions be looked into on habeas corpus. (1 Ch. Cr. Law, 127; Petersd. on Bail, 521; Bac. Abr. Bail in Crim. Ca. D.) Formerly those depositions could be brought up only on a writ of certiorari, but nowwe have a statute directing the magistrate to send them up, on a mere requisition of the officer allowing the habeas corpus.

I have thus taken occasion to express my dissent from the doctrines asserted in the note to 3 Hill’s Reports, and more than once assented to, though never directly ruled, by the late Judge Cowen. It is the first time that the question has been directly presented for my adjudication, though it has been frequently intimated before me, and I have taken time to examine fully into the matter, because I consider the doctrine as striking a fatal blow at the remedial powers of this great writ, and, if once established, as virtually repealing the statute which was enacted for the very purpose of affording against oppression under the forms of law the same protection which for a long time had been secured against imprisonment without due process of law. And as the reign of lawless violence has passed away and been succeeded by times when it is chiefly through the tribunals of justice that men seek to vent their evil passions upon one another, it becomes of the highest importance that this writ should be maintained in its integrity, as it is thus alone that the great duty of government can be discharged of demanding an account why the liberty of the citizen is restrained, wherever that restraint may be inflicted. (3 Bl. Com. 131.)

In thus asserting and defending the high prerogative of administering relief against unjust imprisonment, as existing in this court at common law and in its members out of court under the statute, I must not be understood as maintaining that the appellate power thus conferred can or will be exercised in a wild or loose or arbitrary manner, or that an appeal exists as a matter of course in every case of a commitment, with a right to demand a review of the grounds of the commitment.

Where the party is in custody by virtue of a final judgment of a court of competent jurisdiction, he must be immediately remanded. (2 R. S. 567, § 40.)

If the party is in custody on an indictment found for felony not bailable, there being no means of ascertaining the grounds on which the indictment is predicated, he will be remanded. (McLeod’s Case, 25 Wend.)

If in custody on process merely irregular, he will be remanded on habeas corpus and be remitted to the proper court to correct and remedy the formal defects in its own process. (People v. Nevins, 1 Hill, 154; Bank of U. S. v. Jenkins, 18 Johns. 305.)

If detained on civil process, regular and valid on its face, the examination will be confined to the jurisdiction of the power which issued it, and to the inquiry whether some event has not since occurred to entitle the prisoner to his discharge {Ibid.)

If in custody on criminal process before indictment, the prisoner has an absolute right to demand that the original depositions be looked into to see whether any crime is in fact imputed to him, and the inquiry will by no means be confined to the return. Facts out of the return may be gone into to ascertain whether the committing magistrate may not have arrived at an illogical conclusion upon the evidence given before him, whether he may not have been governed by malice, or have exceeded his jurisdiction, and whether he may not have mistaken the law, or, in the language of Lord Ellenborough in the case of Sir Francis Burdett against the Speaker of the House of Commons (14 East, 1,) to ascertain whether the commitment was not palpably and evidently arbitrary, unjust and contrary to every principle of positive law or rational justice.

Confined within these limits, the inquiry can be effectual for the protection of personal liberty against oppression under color of legal process. Extended beyond it, it might be eminently mischievous in retarding the due administration of justice, and therefore, though the power oFexceeding those limits is clearly conferred, no discreet judge will step over them, unless for somi palpable and overpowering cause.

I shall in this case look beyond the return and inquire into the cause of commitment, and I shall not confine my inquiry merely to an examination of the depositions which have been returned to me and for these reasons.

The warrant which is returned to the writ of habeas corpus, is a full commitment for grand larceny in stealing from Thomas J. Crossman f 40 in gold coin. No such warrant could issue until the complainant and the witnesses produced in support of the prosecution had been examined on oath in the presence of the accused. (2 R. S. 708, § 13.) Nor until the prisoner has ' also been examined in relation to the charge. (Ibid, § 14.)

The “ allegations” put in by these prisoners in answer to the return and sworn to by them, set up that they were arrested by a person not a police officer, that when taken before the police magistrate, they demanded an examination of the complainant in their presence, which was refused, and they were thereupon committed in default of bail.

If these allegations are true the imprisonment was clearly illegal. And they are facts out of the return, which the prisoners have a right to allege, and which it is my duty to inquire into.