text:
    Supreme Court. Saratoga General Term,
    June, 1857.
    C. L. Allen, James and Rosekrans, Justices.
    The People v. Patrick McKinney.
    Where a person testifies to what is true in fact, but at the time he testifies does not know it to be true, and has no knowledge on the subject, if such testimony be material and the act willfully committed, such person is guilty of perjury and may be convicted under an indictment in the ordinary form.
    Where, in an action on an alleged contract, in which the making of the contract was in issue, a witness testified that he went with the parties to the field where the contract was made, and was present at the making of the contract, and heard it agreed to by the parties, and that no other persons were present except himself and the parties to the contract, and it appeared on the trial of an indictment against such witness, for perjury in giving such evidence, that such witness did not go to the field where the contract was made, and was not present and had no knowledge of the transaction, it was held that such evidence was circumstantially material, and that the witness, having testified willfully, was guilty of perjury.
    Norm of an indictment for perjury, committed in a civil action tried before a justice of the peace.
    This was a certiorari to the Court of Sessions of the county of Saratoga, in which court the prisoner had been convicted of peí jury.
    The indictment charged:
    “ That heretofore, to wit, on the twentieth day of August, in the year one thousand eight hundred and fifty-six, at the town of Waterford, in the county of Saratoga aforesaid, before John Cramer, 2d., Esquire, then and there being a justice of the peace in the said town of Waterford, &c., and being then and there duly authorized to execute the duties of the said office, a certain issue which had been theretofore joined between one Patrick Larkin, plaintiff, and one Platt E. Doughty, defendant, before the said John Cramer, 2d, as such justice of the peace, in a certain action on contract, came on to be tried; which said action had before that time been commenced between the parties in that behalf, and was then and there pending before the said John Cramer, 2d, as such justice of the peace, and which said issue was then and there tried in due form of law, on the said twentieth day of August, one thousand eight hundred and fifty-six, before the said justice in the said town of Waterford.
    “ And the jurors aforesaid, on their oath aforesaid, do further present: That, upon the said trial of the said issue, Patrick McKinney, late of the town of Waterford, in the said county of Saratoga, did then and there appear, to wit, at the said town of Waterford, on the said twentieth day of August, one thousand eight hundred and fifty-six, and was produced as a witness for and on behalf of the said Patrick Larkin, the said plaintiff, and was then and there sworn in due form of law, and did then and there take his corporal oath, before the said John Cramer, 2d, then and there being such justice of the peace as aforesaid (and duly authorized to exercise the duties of said office as aforesaid), that the evidence which he, the said Patrick McKinney, should give, on the trial of the said issue between the said Patrick Larkin, plaintiff, and the said Platt E. Doughty, defendant, should be the truth, the whole truth, and nothing but the truth, which oath was then and there duly administered to the said Patrick McKinney by the said John Cramer, 2d, as such justice, the said John Cramer, 2d, as such justice, then and there having jurisdiction over the subject matter of the said issue, and the persons of the parties thereto, and the said John Cramer, 2d, having sufficient and competent power and authority to administer the said oath to the said Patrick McKinney in that behalf.
    ■ “ And then and there, on the trial of said issue, it became and was a material question whether or not, in or about the month of July, one thousand eight hundred and fifty-six, the said Patrick Larkin, the plaintiff, bought twenty lambs, of the said Platt E. Doughty, the defendant, at the farm of the said Platt E. Doughty, in the town of Halfmoon, in the said county of Saratoga, at and for the price of two dollars a-piece; and whether or not four of the said lambs were delivered to the said Patrick Larkin; and whether or not the rest were to be delivered at any time when the said Patrick Larkin would come after them; and whether or not the said bargain was made in the field where the said lambs then were; and whether or not the said Patrick McKinney was present and heard the said contract and the conversation between the said Patrick Larkin and the said Platt K. Doughty in relation to said lambs.
    “ Thereupon, the said Patrick McKinney being so produced and sworn as aforesaid, and being then and there lawfully required to testify and depose the truth on the trial of said issue, designing and wickedly intending to prevent the due course of justice, and to cause a judgment to pass and be rendered against the said Platt R. Doughty, and in favor of the said Patrick Larkin, plaintiff in said action, did then and there, before the said John Cramer, 2d, then there being such justice of the peace, as aforesaid, willfully and corruptly swear and give evidence on the trial aforesaid falsely, amongst other things, in substance, as follows:
    “ That the said Patrick McKinney was present when Patrick Larkin, the plaintiff, had a conversation with Platt R. Doughty, the defendant, about some lambs; that this was about four weeks before the time of the said trial before the said justice; that the said conversation took place on the premises of the said Platt R. Doughty, in the town of Half-moon, in the county aforesaid; that the said Patrick Larkin bought twenty lambs, at two dollars a-head, of the said Platt R. Doughty; that four of the said lambs were delivered ; that the rest or residue of the said lambs were to be delivered at any time when the said Patrick Larkin should come after thém; that said bargain was made on the premises of the said Platt R. Doughty, as aforesaid, down in the field where the sheep were, about a mile and a half from the house; that the said Patrick McKinney went down into the field where the sheep were with the said Patrick Larkin and the said Platt R. Doughty, and that no one was present when the bargain was made except the said Patrick Larkin, Platt R. Doughty, and him, the said Patrick McKinney: whereas, in truth and in fact, he, the said Patrick McKinney, was not present when Patrick Larkin, the plaintiff, had a conversation with Platt R. Doughty, the defendant, about some lambs; and whereas, in truth and in fact, the said Patrick Larkin did not buy twenty lambs of the said Platt R. Doughty; and whereas, in truth and in fact, no portion or number of the said lambs were to be delivered to the said Patrick Larkin at any time or times; and whereas, in truth and in fact, the said Patrick McKinney did not go over into the field where the sheep were with the said Patrick Larkin and the said Platt R. Doughty; and whereas, in truth and in fact, the said Patrick McKinney was not in the field where the sheep were, at any time, with the said Patrick Larkin and the said Platt R. Doughty.
    “And the jurors aforesaid, upon their oath aforesaid, do say: That the said Patrick McKinney, on the said twentieth day of August, in the year one thousand eight hundred and fifty-six, at the said town of Waterford, in the county of Saratoga aforesaid, before the said John Cramer, 2d, then and there being such justice of the peace as aforesaid, wickedly, willfully and corruptly did commit willful and corrupt peijury, in contempt of the people of the State of New-York and their laws, against the form of the statute in such case made and provided, and against the peace of the people of the State of New-York and their dignity.”
    On the trial in the Sessions, the pendency of the suit before the justice of the peace was proved as set forth in the indictment, and also that the" defendant testified as is therein alleged. Three witnesses testified that the prisoner was not present at the making of the bargain between Larkin and Doughty, but that Larkin and the prisoner came together to the farm of Doughty, with a span of horses; and that Larkin left the prisoner with the horses, to take care of them, while Larkin and Doughty went away to a different part of the farm, and into another field, to see the lambs which Larkin had come for the purpose of buying; and that none of the conversation in regard to the purchase took place in the presence of the prisoner, except the proposition to go down and look at the lambs. The constable that arrested the prisoner testified that the prisoner escaped from him after his arrest, and was retaken, and that the prisoner while in his custody admitted that he did not go at all into the field where the lambs were, but that he stayed with the horses; and that when the constable asked him why he had sworn so, he said that Larkin told him he would make it all right.
    The counsel for the prisoner asked the court to charge that the testimony of the prisoner on the trial before the justice, so far as it related to his having gone to or been in the field when the bargain between Larkin and Doughty was alleged to have been made, and to his having been present at the making of such bargain, and to the presence thereat of no other person but himself and the said Larkin and Doughty, was immaterial to the issues pending before the justice, for the reason that it was undeniable, from the evidence, that the bargain testified to by the prisoner was in fact made at the time and place testified to by him, and that if he had actually obtained knowledge of the existence of such bargain, previous to such oath, by information of the parties, or in any manner fairly entitling him to believe in its existence, it was totally immaterial whether or not he was actually present when or where the bargain was made, or who was present; and although his testimony might be false in those respects, he could not be convicted of perjury therefor. The court declined so to charge, and the prisoner’s counsel excepted.
    The prisoner’s counsel further asked the court to charge-that the prisoner could not be convicted under the indictment, on the ground that, although in his testimony as to the existence of said bargain he testified truly, he nevertheless did not know that liis° testimony in that respect was true, or upon any like ground in substance, for the reason that said indictment charged no such offence, and did not contain any assignment of perjury embracing any such ground of accusation. The court refused so to charge, and the prisoner’s counsel excepted.
    The court charged that although the evidence of the prisoner before the justice, concerning the existence and terms of the bargain between the said Larkin and Doughty, was all true, yet, if the jury believed from the evidence that the prisoner, at the time of such testimony, did not know the same to be true, or have such knowledge or information concerning said bargain as fairly justified him in believing his said testimony true, then the prisoner could be properly convicted under the indictment, and it would be the duty of the jury in that case to find, a verdict of guilty.
    The jury found the prisoner guilty.

      W. A. Beach, for the prisoner.
    I. The court erred in holding that the prisoner could be convicted, under the indictment, for swearing to the truth, not knowing it to be true. The indictment charges no such offence. The crime alleged is that of swearing a thing to be true which was not true. No conviction can be had except under the assignment of perjury in the indictment. (2 Russ. on Cr., 542; 1 Morris, 341.)
    II. It is immaterial whether or not the bargain prisoner swore to was made at the place testified to, and whether or not he was present; it being admitted, as it was, that the bargain was made.

      John O. Mott (District Attorney), for the people.
    I. The evidence of the prisoner, as to his having gone to and being in the field when the bargain between Larkin and Doughty was alleged to have been made; his having been present at the making of such bargain ; and as to the presence thereat of no other person hut himself and the said Larkin and Doughty, were facts circumstantially material upon the question of the prisoner’s knowledge of the existence of the bargain to which he testified. They went to show his means of knowledge, and the amount of credit to be given to his evidence before the justice. They were material to his credibility and the admissibility of his evidence. (Commonwealth v. Pollard, 12 Metc., 225 ; Whart. Cr. L., 751, 3d ed.; The State v. Wall, 9 Yerg., 347; The State v. Lavalley, 9 Missouri, 834; The State v. Morris, 9 N. Hamp., 96; 2 Russ. on Cr., 642, 7th Am. ed.) Whether the testimony was material was a question of law. (Whart. Cr. L., 751.)
    II. Though the thing sworn to may be true, yet if it was not known to be by the prisoner, it was perjury, inasmuch as he willfully swore that he knew a thing to be true which he knew nothing about. (2 Russ. on Cr., 597, 7th Am. ed.; The State v. Cruikshank, 6 Blackf., 62.)
   The Supreme Court gave judgment overruling the exceptions and remitting the proceedings to the Saratoga County Sessions, with directions to proceed and render judgment on the verdict.

Conviction affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Tompkins Oyer and Terminer.
    August, 1857.
    Before Balcom, Justice of the Supreme Court, and H. Jennings and C. Burch, Justices of the Sessions.
    The People v. William Masters.
    Under the statutes of the State of New-York, the people are entitled to two peremptory challenges,  ( This decision is in accordance with The People v. Caniff, 2 Park. Cr. R., 586; and adverse to The People v. Henries, 1 Park. Cr. R., 579.)
    The prisoner was tried on an indictment which charged him with killing Timothy Raudon, at Ithaca, on the 5th day of November, 1854, without the authority of law, by poison called arsenic.

         By chapter three hundred and thirty-two of Session Laws of 1858, five peremptory challenges are given to the people, in cases punishable by death or by imprisonment in a state prison for ten years or over, and three peremptory challenges where the punishment is less than ten years.

   One Scott was called as a juror, and was challenged peremptorily by the district attorney; whereupon the prisoner’s counsel objected, and insisted that the district .attorney was not entitled to challenge any juror peremptorily ; but the court, after deliberating upon the question, by Balcom, J., overruled the objection, and held that the district attorney had the right peremptorily to challenge two of the persons drawn as jurors for the trial of the prisoner. (Laws of 1847, ch. 134, § 1; 2 R. S., 734, § 11.)

This decision is sustained by the adjudications in The Waterford and Whitehall Turnpike Company v. The People (9 Barb., 161); The People v. Caniff (2 Park. Cr. R., 586); and it is adverse to the case of The People v. Henries (1 Park. Cr. R., 579), also to that of The People v. Aichinson (7 How. Pr. R., 241).

Scott was rejected as a juror. One Sullivan was also challenged peremptorily by the district attorney, and he was not allowed to sit as a juror.

The prisoner was acquitted by the jury.


author: By the Court, Balcom, J.

text:
    Delaware Oyer and Terminer,
    September, 1857.
    Before Ransom Balcom, Justice of the Supreme Court, and D. A. Bostwick and C. H. Bell, Justices of the Sessions.
    The People v. Seth Goodrich.
    Courts of Oyer and Terminer have power to grant new trials, in cases of conviction upon insufficient evidence, or where verdicts have been rendered against evidence; but the power ought not to be exercised except in cases where it was the duty of the court to advise the jury to acquit the defendant, or to inform them that it was unsafe to convict upon the evidence before them.
    In cases of doubt, where the evidence is conflicting and the credibility of the witnesses is in question, and no error has been committed by the court in its charge, a new trial will generally be denied.
    The defendant was tried on an indictment which charged him with peijury, in swearing to an affidavit in October, 1856. The evidence was conflicting, and the case was submitted to the jury under a charge from the court to which the defendant’s counsel did not except, and the jury found the defendant guilty. The defendant’s counsel applied for a new trial on the ground that the evidence was insufficient to sustain the verdict of the jury, and was against evidence. The motion for a new trial was argued by
    J. Grant (District Attorney), for the people.

      S. Gordon and William Yeomans, Jr., for the defendant.
   By the Court, Balcom, J.

We entertain no doubt but that Courts of Oyer and Terminer have power to grant new trials to prisoners who have been found guilty upon insufficient evidence, or where verdicts have been rendered against evidence. (The People v. Stone, 5 Wend., 39; The People v. Morrison, 1 Park. Cr. R., 625.) But before a Court of Oyer and Terminer ought to exercise this power, the case should be such as to have made it the duty of the court to advise the jury to acquit the defendant, or that it was unsafe for them to convict him.

The case before the court does not quite come up to this standard; in other words, it does not fall within this rule. The evidence was conflicting; and the authorities are, if there be conflicting evidence on both sides, and the question be one of doubt, the verdict will generally be permitted to stand. (Whart. Cr. L., 894, 2d ed.) No fault has been found with the charge of the presiding judge to' the jury, touching any question of fact in the case. The jury were told, if they believed the principal witness for the defendant, they ought to find the defendant not guilty; and there were facts and circumstances before them, aside from the peculiar nature of the story told by the witness and his manner of detailing it, which, upon one construction, authorized them to disbelieve him. If no evidence had been given on the part of the defendant, enough was proved to sustain the finding of the jury; and they have found that the evidence for the people was true, and that of the main witness for the defendant false. It was their province to determine the credibility of the witnesses, and their verdict is conclusive upon the defendant.

The condition of the case is such that we must regard the defendant’s evidence as out of it, or as false, in determining the defendant’s application for a new trial. We cannot, therefore, grant a new trial, although we should have been better satisfied with the action of the jury if they had acquitted the defendant.

Motion for a new trial denied, and the defendant sentenced to imprisonment in the state prison for the term of two years.


author: Peabody, J.

text:
    Supreme Court. At Chambers, New-York,
    September 9, 1857.
    Before Peabody, Justice.
    The People v. Emma Augusta Cunningham.
    The action of a committing magistrate is not final on the question of admitting to hail.
    Where the crime charged and the circumstances are such that a bail bond will afford reasonable assurance that the accused will appear to stand trial, it is his right that the bond should be accepted in lieu of his personal detention.
    The right to detain for trial, being a restraint upon personal liberty, is limited to the necessities of society, and when other adequate security can be had the necessity for personal detention does not arise, and a resort to it is not warranted by law, but is illegal, unjust and oppressive.
    In determining whether such security would be adequate, it is necessary to consider the nature of the offence charged, the probabilities of conviction, the penalty to follow it, and the position, sex, social and family relations, and pecuniary means of the accused.
    What constitutes the offence of fraudulently producing an infant, falsely pretending it to have been born of parents whose child would be entitled to inherit property, with the intent of intercepting the estate, as described in 2 Revised Statutes {p. 676), discussed, on deciding to admit a person accused of such felony to bail in the sum of $5000.
    This cause came before Mr. Justice Peabody, at chambers, on habeas corpus, issued on the application of the defendant, for the purpose of having the defendant admitted to bail. The facts are fully stated in the opinion of the judge.

      L. S. Chatfield, for the defendant.

      A. Oakey Hall (District Attorney), for the people.
   Peabody, J.

The prisoner is before me on a writ of habeas corpus, addressed to John Gray, warden of the city prison, asking to be admitted to bail. The return to the writ shows that she is detained in prison by virtue of a commitment by a police justice, on the charge of “having feloniously and fraudulently produced an infant, falsely pretending it to have been born of parents whose child would have been entitled to a share of the personal estate, and to inherit the real estate of Harvey Burdell, deceased, with the intent of intercepting the inheritance of such real estate or the distribution of such personal property from the persons lawfully entitled thereto.” '

Annexed to said return is a statutory writ of certiorari, on which is written a discharge of the writ, by Judge Daly, of the Court of Common Pleas. That writ is addressed to the clerk of the Court of General Sessions, commanding him “to certify to Judge Daly the day and cause of the imprisonment of Emma A. Burdell, and the preliminary affidavits, &c., of William S. Davison, one of the police justices,” &c.

Annexed to this writ is the return of the clerk to whom it is addressed, in substance that he had no personal or official knowledge of the day and cause of imprisonment of the said Emma A. Burdell, but that he returns certain affidavits against her on a charge of felony, which have been certified to the Court of General Sessions by the magistrate taking the same. The affidavits referred to in the return are not annexed, and do not appear before me. There is also annexed to the writ of habeas corpus, as if a part of the return to it, an extract from the minutes of the clerk of the Court of General Sessions, stating that a motion was made in that court to admit the prisoner to bail on the 12th day of August, 1857, which was denied.

These papers, the writ of certiorari and the return, and discharge indorsed, and the extract from the minutes of the Court of Sessions, are annexed to and seem to form a part of the return of the warden of the city prison to the writ of habeas corpus on which the prisoner is brought before me.

The prisoner answers to the return by interposing a traverse, and claims that she is illegally detained; and, to show this, she sets forth a copy of the proofs before the magistrate, so that the case presented to him is before me.

A" motion is made on behalf of the people, that the habeas corpus be discharged, on the ground that the question of bail is res adjudicata.

First. That the magistrate, before whom the examination was had, refused to admit to bail.

Second. That the same question was decided adversely to the applicant, by Judge Daly, on the writ of certiorari.

Third. That a motion has been made in the Court of Sessions for the same purpose, which has also been denied.

As to the proceedings before Judge Daly, there is nothing before me to show that the question of admitting to bail was ever passed upon, discussed or raised there, even assuming all the papers before me as a part of the return of the warden of the prison to be properly here, proving their own genuineness and establishing all the facts stated in them. The papers returned to Judge Daly, on that writ do not appear before me, nor is there contained in his discharge any intimation of what was done before him. The more appropriate office of the writ of certiorari, in such case, is to revise the proceedings before the magistrate, and see whether any error in law was committed by him, and particularly whether he had, properly, jurisdiction of the matter. It is not usually resorted to alone for the mere purpose of moving to admit to bail; and I doubt if it has been deemed the appropriate writ for that purpose, except when issued with and in aid of the writ of habeas corpus, which it was not in that case. I cannot therefore infer, from the fact that a writ of certiorari was issued, and afterwards discharged by him, which is really all that I have any evidence was done, that the question of bail was raised and decided on that occasion ; much less can I assume that, either before him or the Court of Sessions, the question of admitting to bail was presented and decided on the same state of facts as presented before me, which must have been the case to constitute it an estoppel, on the ground that the question was res adjudicata.

Estopples are not favored in law, and the party seeking to avail himself of one must set forth all the facts necessary to establish it. On the part of the prisoner, it was denied most positively that either of those learned judges did examine and pass upon that question; and certainly the papers before me fall far short of setting forth the facts in a manner sufficiently full and definite to authorize me to adjudge that they did. The extract from the minutes of the Court of Sessions does not show on what papers or facts the motion was made, and it is conceded practically that the person of the prisoner was not before either of those judges to give jurisdiction of her person.

A motion was made on behalf of the prisoner to have all the papers returned by the warden of the city prison, except the commitment, stricken from the record as not being properly there, and I think it should be granted. (2 R. S., 799, § 47 ; Bennae v. The People, 4 Barb., 31; Mercien's case, 25 Wend., 48-82, 84; 3 Hill, 416; 25 Wend., 78-90.) If they are admissible at all, they are not so as a part of his return. They should have been introduced on behalf of the people. But they are probably not admissible at all under the objection by the prisoner. If Judge Daly, or the Court of Sessions, having jurisdiction of the matter and the person, entertained a motion for bail on the facts shown before me, and made an order dismissing it, a properly certified order or copy of the order showing the facts would be competent evidence of them and of the judgment thereon; but these papers are not proper evidence of it, and if allowed to stand as a part of the return of the warden they are not sufficient to establish the facts claimed, in the face of the denial of it by the prisoner. No other evidence that it did occur having been offered, I presume no better or further evidence can be given. If the decision by the committing magistrate and those made subsequently were, as is claimed here, final in their nature, then was the question already res adjudicóla when it came before Judge Daly, and it had been twice finally adjudicated when afterwards it came before the Court of Sessions, and on the same principle it was finally adjudged there for the third time. It is not pretended that in either of those cases the consideration of the merits was refused on the ground that the prisoner was estopped by the previous decisions. On the contrary, it is insisted by the prosecution that the question was decided on its merits on. both and all occasions. . If each of these decisions was in its nature final, the principle on which I am asked to dismiss this writ has been already twice violated in this case, which I am slow to believe.

The action of the committing magistrate is not final in its nature, and there is not before me any sufficient evidence that the question, as presented here, has ever been judicially determined by any other court or officer having jurisdiction to pass upon it, and I am bound to entertain the motion on its merits.

These preliminary objections being disposed of, it remains for me to decide whether this is a proper case for bail, and, if so, to fix the amount of bail proper to be taken. Is this a proper case for bail ? Society has a right, when a crime has been committed, to punish the author of it, and, for that purpose, when facts are shown which indicate with a reasonable degree of probability that any certain person is guilty of it, it is the right of society to have such person properly brought to trial, that his guilt or innocence may be ascertained.

For the purpose of securing his presence for trial, and, if convicted, subsequently for punishment, he may lawfully be restrained of his personal liberty and detained in custody, unless he elect to give such pledge as affords a reasonable security that he will appear at the time and place fixed for trial. Such reasonable security for the appearance is all that society has a right to in that respect; and when the crime charged and other circumstances are such that a bond will afford reasonable assurance that he will appear to stand trial, it is the right of the accused that the bond should be accepted in lieu of his personal detention for the time. This is the law of our land. It is consistent with reason and humanity. It answers all the necessities of society, and with the least amount of privation to the individual consistent with the paramount right of society.

The right to detain for trial by a restraint of personal liberty is limited to the necessities of society; and when other adequate security can be had, the necessity for personal detention does not arise, and a resort to it is not warranted by law, but is illegal, unjust and oppressive. What are the rights of society and what those of the individual in this case ? Will a bond in a pecuniary penalty afford reasonable security that the accused will appear in compliance with it and submit herself to trial ? The forfeiture of such a bond would merely give to the state the amount of the penalty in money, which would not afford compensation for a failure of justice; and, in examining this question, I am to look chiefly, if not entirely, to the probability of its answering the end of rendering her appearance sure. In determining whether such security would be adequate, the circumstances of the case must be considered. Prominent among them are the nature of the offence charged and the penalty to follow upon conviction. And first, as to the nature of the offence: what amount of odium would attach to a conviction of it ? The production of a child, falsely pretending it to be born of parents whose child would be entitled to property, with the intent to divert such property from the legal channels of descent, and thereby defraud those who are legally entitled to it; an attempt, by the production of a fictitious heir, to defraud real heirs of their legal rights; an attempt, by one grand falsehood, sustained by numerous other untruths, to deprive persons of property to which they are legally entitled; this seems to suggest the moral grade of the offence, which should determine the measure of odium to be visited upon a conviction. Next, what is the legal penalty to which she is exposed ? This is imprisonment in the state prison for a term “not exceeding ten years.” The medium between the greatest and the least amount of punishment allowed by law would be five years’ imprisonment, and this is certainly sufficient to make one shrink from exposure to it, and seek to avoid it with no little zeal, and without regard to small sacrifices. A delicate woman, especially, must be supposed to look with horror at the possibility of'such a result. Next come the probabilities of conviction; and all experience has shown that this consideration is usually the most prominent in the human mind, in determining the amount of sacrifice to be made and hazards to be encountered, for the sake of avoiding a trial. The prospect of any term in state prison is usually esteemed by the accused of vastly more consequence than the extent of the duration of that term. The mind shrinks from contemplating at length what is to follow after entering that sepulchre,—the progress of time, the revolution of the seasons, the succession of events in that other world,—and, for most purposes, limits its survey to the yawning portals, the approach to them, and the moment at which they are to be passed. The chances of conviction, then, are of the first importance in calculating the probability of one’s appearance for trial in compliance with a bond. The facts in this case, as presented by the prosecution, are, that the accused, after feigning pregnancy for sufficient time, was found in her chamber, in the night, in bed, having by her a child of which she affected to have been recently delivered, and which she said, when asked by some visitors, was the offspring of herself and Dr. Burdell. She had previously claimed to be the wife of Dr. Burdell, who was then deceased, having left a considerable estate, which, if she were his wife and this were their child, it would be entitled to inherit-. The intent on her part, from the evidence of the prosecution, seems pretty certainly to have been at some time to make a claim, on behalf of this child, to the estate of the deceased Dr. Bur-dell ; .and the great question is, was this a fraudulent production of a child, falsely pretending it to have been born of parents whose child would be entitled to inherit, with the intent thereby to intercept the inheritance?

The question seems to divide itself into several :

First. Was it a fraudulent production of the child ?

Second. Did she falsely pretend that it was born of certain parents ?

Third. Would a child of the parents of whom she pretended it was born be entitled to inherit ?

Fourth. Was it her intention, by this fraudulent production, to intercept the inheritance ?

First. Was the production of this child, under the circumstances, a fraud in law ? Was any fraud in law perpetrated ? Was any fraud attempted at that time ? If there was any fraud perpetrated or attempted, against whom was it attempted ? Who was, by this production of the child, defrauded or attempted to be defrauded ? Was it Dr. Montagne, or Captain Speight, or Inspector Dilks, the persons to whom she said, in answer to their inquiries, that it was her child? The child was there, and was carried thither, directly or indirectly, by her. But she had made no statement or claim respecting it, except to answer certain questions proposed to her; and if she had then proclaimed that it was the offspring of herself and Dr. Burdell, I do not see that it would be material. She intended, probably, at some future time, to perpetrate a fraud, or to attempt one, and this child may have been provided for the purpose as a means or instrument to be used in its accomplishment. She intended at a future time fraudulently to produce that child, and to assert its rights, as the offspring of herself and Dr. Burdell, to the property left by him. Did she so produce it at that time? She had made no such claim, and it seems to me quite doubtful if the fraudulent production contemplated by the statute was there made at the time she was arrested in her course; and without dwelling to show by what process of reasoning I arrive at the result, further than is suggested above, my conclusion is that there is at least great doubt, even assuming the facts to be exactly as claimed by the prosecution, and susceptible of no contradiction or modification, whether a fraudulent production, such as the statute contemplates, and such as is declared to be a felony and punishable by imprisonment at hard labor for ten years, was there made and completed.

Second. Did she falsely pretend that it was born of certain parents, herself and Dr. Burdell ? She certainly did, if I understand the meaning of her language.

Third. Would a child of the parents of whom she pretended it was born, that is, of herself and Dr. Burdell, be entitled to inherit? There is no evidence or claim that it would;.on the contrary, the previous pretence of the accused in that respect is substituted and relied on by the prosecution for the legal fact. She had previously claimed or pretended to be the wife of Dr. Burdell, and if she had been ■ so, a child of them would have been entitled to inherit. Her previous claim in that respect is the only evidence of the fact. This claim of hers, to be evidence at all, must, I suppose, come under the head of confession, and would be slight evidence of such a fact. She probably thought that a child of herself and Dr. Burdell would be allowed to inherit. There is no evidence that it would, however, and I think the case not without difficulty at this point. The production of a child, pretending it to have been born of parents whose child, it is pretended, would be entitled to inherit, is not the crime described in the statute. The pretended offspring of a pretended marriage is not the child whose production is so severely punished. The danger to society of a simulated marriage is not greater than that of other false pretences. The fact of a marriage is one which may be ascertained with the same care as other facts, and no stringent enactment has been made against such a pretence because none has been deemed necessary ; but the facility with which spurious offspring of a genuine marriage may be imposed, and the great difficulty in detecting such a fraud where a marriage really exists, has been deemed to require the most rigorous punitory enactment for the protection of society. Not so, however, with respect to a pretended marriage, for that may be more easily detected, and no such stringent legislation against such a pretence is required, and never has been made.

Fourth. Was it her intent, by this production, to intercept the inheritance ? The fraudulent production, the false pre tence that it is born of parents whose child would be entitled to inherit, and the intent to intercept the inheritance, must unite to constitute the crime. We will assume that there was the fraudulent production and the false pretence as to its birth : What intention was there by that production and false pretence, at that particular time and place, to intercept the inheritance ? Was there the intent, by the act accompanying it, which is requisite to constitute the crime ? Was not all this scene in contemplation of and preparatory, to acts intended to be performed at a future time, which acts would probably (had they been realized) have constituted the offence which the statute designed to punish? This statute has never received a judicial construction, that I am aware of, and no analogies for its construction have been suggested. Of course I am left without those aids in my endeavors to find a proper construction for it; and, in the brief and summary manner in which this matter has been disposed of, I can only hope to arrive at general accuracy in the result to which I shall come. To my mind there is great difficulty in applying this statute to the facts presented in this case; and I come readily, therefore, to the conclusion that there are very serious doubts about a conviction under it being practicable. Other circumstances of this case are also worthy of consideration. Her position in life, her social and family relations, the innumerable ties which have more or less restraint in every case, and her pecuniary means, may all be considered; but above all circumstances to be considered in this connection is her sex, which diminishes immeasurably, in my judgment, the power and probability of escape. This, in connection with her children, numerous, helpless and dependent, and- each a hostage to. society that she will remain where she can be subjected to the operation'of law, seem to be of themselves almost adequate recognizances for her appearance for trial, and, strengthened by a bond for a reasonable amount, may, I think, be relied on, under all the circumstances, with entire safety. Perhaps no occurrence within our time has so electrified society, throughout all ranks and classes, as this and one shortly preceding it, with which, in the public mind, this unfortunate accused was also associated, and certainly no person under suspicion was ever more rigorously dealt with by public opinion ; and it is not remarkable that, under the influence of the prevailing sentiment by which every one must be affected in a greater or less degree, it should have been difficult to convince a conscientious and enlightened judge that it was safe and proper to admit her to bail. But now that the lapse of time has allowed the tempest of public feeling to subside, it would be not a little remarkable if a magistrate should be found to adjudge, upon all the circumstances of this case, that no amount of bail would render her production for trial reasonably secure. The value of this right, to be discharged on giving bail, to her and her family at this .most critical juncture, when, in addition to all ordinary reasons, its importance is immeasurably enhanced by her necessities for it, to enable her to prepare for the ordeal through which she is about to pass, is too apparent to call for a remark. But the importance to society, that the law which depends for the support and enforcement on the respect and confidence it should maintain in the minds of the public, should not be allowed to work injustice and oppression, is no less momentous; for, with us, nothing can be more fatal than a distrust of public justice. The scenes of violence and outrage occurring from time to time in regions which we are accustomed to regard as less favored than our own, are not more to be deprecated because they are done in open defiance of law. On the contrary, the same amount of injustice perpetrated in the name and under the forms of legal justice, would go farther to undermine and break down society, because it would assume the livery and feign the sanctity of judicial enactment.

My conclusion is, that the ends of public justice will be answered by admitting the prisoner to bail in the sum of five thousand dollars.


author: By the Court, Clerke, J.

text:
    Supreme Court. New-York General Term,
    October, 1857.

      Mitchell, Davies and Clerke, Justices.
    The People v. Emma Augusta Cunningham.
    Though the action of a committing magistrate or court, on the question of admitting to bail, is the subject of review by an appellate jurisdiction, yet it is final as to other magistrates or courts of coordinate or concurrent authority on the same question.
    Where bail had been refused by the committing magistrate, and also by the Court of General Sessions, in which court the indictment was pending, and a justice of the Supreme Court afterwards decided, at chambers, to admit to bail, the decision of the justice was reversed, on certiorari, by the Supreme Court, sitting in general term, on the ground that the question was res judicata when brought before the justice of the Supreme Court.
    But when bail has been refused on account of insufficiency, the decision does not preclude a new application for a discharge on offering other bail.
    Forms of writ of certiorari, for review of decision of judge at chambers admitting to bail, allowance of writ, and affidavit on which writ was allowed.
    This matter came up on certiorari, directed to Mr. Justice Peabody.
    The affidavit, allowance and writ were as follows:

      City and County of New-York, ss:

      A. Oakey Hall, district attorney of the county of New-. York, being duly sworn, deposeth and saith: That on or about the thirty-first day of August last, a writ of habeas corpus was issued out of the Supreme Court, allowed by and returnable before the Honorable "Charles A. Peabody, commanding the warden of the city prison to produce before him the body of one Emma Augusta Cunningham, otherwise Burdell, with the day and cause of her imprisonment! That, accordingly, on or about the first day of September, instant, the warden of the city prison, to whom said writ was addressed, produced the said body before the Honorable Charles A. Peabody, with a certain commitment of one William S. Davison, a police justice of the city of New-York, committing the said Emma Augusta Cunninghaih, otherwise Burdell, to the city prison, without bail, on a charge of felony,' of which due return was made. That, thereupon, the said return was duly traversed, and argument had upon the same. That, on the tenth day of September, instant, the said Honorable Charles A. Peabody made a final adjudication of the matters which had so arisen, by writing his certain order on the writ in these words and figures:
    “ The within prisoner having given bail is discharged from custody and imprisonment.
    “Sept. 10,1857. “ C. A. Peabody.”
    And further deponent saith not.
    A. Oakey Hall.

    J. J. Roosevelt.
    Upon- the above affidavit let there issue the statutory writ of certiorari, directed to the Honorable Charles A. Peabody, the officer in said affidavit named, returnable the second Monday of September instant, at the general term of the Supreme Court to be held on that day in the first judicial district.
    J. J. Roosevelt.
    Dated New-York, Sept. 11, 1857.
    The People of the State of New-York, to the Honorable Charles A. Peabody, one of the justices of our Supreme Court, sitting in commission in a matter of habeas corpus, greeting:
    Whereas, we have been informed, by the official affidavit of the district attorney of the county of New-York, that a writ of habeas corpus was heretofore issued by you on behalf of one Emma Augusta Cunningham, directed to the warden of the city prison in the city of New-York, and requiring him to have her body before you, to be dealt with according to law:
    And whereas, pursuant to the requirement of the said writ, the body of the said Emma Augusta Cunningham was brought before you, and such a return made to the said writ of habeas corpus; that thereupon you proceeded to hear the several matters arising thereupon, - and that thereupon, after these proceedings were had, you, the said justice, did discharge the said Emma Augusta Cunningham, otherwise Burdell, from the custody or restraint of the said warden, upon bail: And we being willing to be certified of such proceedings as were had before you, do hereby command you to certify and return the said writ of habeas corpus, the petition therefor, the return thereto, and all such other papers and due proceedings as were thereupon severally had before you, unto our justices of our Supreme Court, at the City Hall, in the city of New-York, on the second Monday of September instant, at the general term of said court, under your hand, as fully and amply as the same remain before you, so that our said justices may further cause to be done thereupon what of right and according to law ought to be done; and have you then there this writ.
    Witness, the Honorable James J. Roosevelt, one of the justices of our said court, at the City Hall, in the city of Hew-York, the eleventh day of September, in the year of our lord one thousand eight hundred and fifty-seven.
    A. Oakey Hall,

      District Attorney for the People.

    R. B. Connolly, Clerk.

    To this writ Mr. Justice Peabody returned the petition for habeas corpus, the writ of habeas corpus, with the return thereto, and the traverse to said return, his final order of adjudication admitting to bail, and his opinion in support of such decision.

      A. Oakey Hall (District Attorney), for the people.
    I. Commissioner Peabody erred in bailing the prisoner, for the question of bail was res adjudicata,. _ 1. The court of General Sessions certainly had jurisdiction of the motion to bail under 2 Revised Statutes (p. 710, § 31). It was the court having original jurisdiction, and superior to that of a commissioner in habeas corpus. It was res adjudicata upon the question of bail, both in rem and in personam. The subject matter and the persons before the commissioner were identical with that and those before the court; and no new facts were alleged to change the aspect of the question. The action of the court was as much,of a final judgment upon the motion as could be given thereupon. If the prisoner desired relief she could have brought her certiorari to the Supreme Court, but had no legal power of appeal from the court to a commissioner, by the collateral method employed. Suppose Commissioner Peabody had also refused bail, could the prisoner take collateral appeal upon appeal, through the whole alphabet of oificers who possess power to issue writs of habeas corpus, and to bail prisoners, until her desired relief was obtained? Could the people, the party with whom she litigated, acquire no rights under the various adjudications ? The action of the Court of Sessions may be considered as analogous to action upon habeas corpus. The court, by virtue of the statute, have jurisdiction after final commitment of bodies, and of offences of prisoners charged with crimes triable in that court, a jurisdiction coextensive with any enjoyed under writs of habeas corpus and certiorari. (Barry v. Mercein, 25 Wend., 64; In matter of Da Costa, 1 Park. Cr. R., 136 ; In matter of John B. Overton, order of Whitney, J., MS.) 2. We have said nothing of the matter being res adjudicata, in consequence of the proceedings before Justice Davison. The police justice has power to adjudicate upon bail coextensive with the court of General Sessions, He is enumerated in the same section with justices of the Supreme Court, &c. (2 R. S., 893, § 31, subd. 4.)
    II. But if the question of bail was open before Commissioner Peabody, he erred in allowing bail to the prisoner. She was taken in flagrante delicto, committing a felony, and offers no defence to, nor explanation of her acts, except in t effect a demurrer to their legal sufficiency under the statute. If the statute has been violated, she is liable to ten years’ imprisonment in the state prison. Even if Commissioner Peabody be correct in his application of the facts to the statute, she was guilty of an attempt at the alleged felony, which attempt renders her liable to five years’ imprisonment in the state prison. (In re Robinson, 25 Eng. L. and Eq., 216; Ex parte Tayloe, 5 Cow., 39; 2 Benn. & Heard, 573; 3 Hill, 672; United States v. Johns., 4 Dall., 412; Commonwealth v. Traske, 15 East, 277; 1 Greenleaf's Ev., § 382; Whart. Am. Cr. Law, 496; 2 R. S., 748, § 46; 1 Park. Cr. R., 367.)

      L. S. Chatfield, for the prisoner.
   By the Court, Clerke, J.

The respondent in this certiorari was commited to close custody on the eleventh day of August last, by the Police Justice Davison, for an alleged felony.' On the same day, she sued out a writ of -certiorari, ■returnable the next day before Judge Daly, one of the judges of the Court of Common Pleas for the city and county of New-York. The cause, being in the Court of General Sessions, this writ was directed to its clerk, who returned the depositions on which her commitment by the police justice was founded, duly certified by him. The depositions thus became á record in that court. Judge Daly, after hearing counsel on both sides, discharged the writ sued out before him. Within a short time after the failure of this application to Judge Daly, a motion was made by the counsel. for the respondent, before the Court of General Sessions, to admit her to bail, by virtue of the statute giving Courts of General Sessions power to let to bail persons commited to prison before indictment, for any ofience triable in that court. (2 R. S., 710, § 34, (31) lst ed.) It appears from a certified extract from the minutes of the .court, that this motion was denied; having been made, of course, in open court, and the district attorney having been heard in opposition. It is admitted, I believe, that the respondent was not personally or corporeally present in court when this motion was made; and, on the other hand, it is not denied that it was made on her behalf and with her concurrence..

On the thirty-first of August, the respondent sued out a writ of habeas corpus, returnable before Mr. Justice Peabody, one of the justices of the Supreme Court; and thus she renewed, for the fourth time, her application for bail. In the petition addressed to Judge Peabody, praying for this writ, she states that she is held in custody, and is imprisoned under a certain commitment, issued by the police justice, a copy of which, containing the alleged cause of her imprisonment, she annexed to her petition, making it a part of the petition. She also states, in reference to the imprisonment, that it was illegal, “ as she was entitled to bail and was ready, and offered to give sufficient securityso that it appears on the face of the petition that her right to bail, or, at least, the propriety of granting it, was submitted to the committing officer at or about the time he ordered her imprisonment. She also prays that the writ of habeas corpus issue, directed to John Gray, warden of the city prison, commanding him to have her body, with the time and cause of her imprisonment, before the judge, at the chambers of the Supreme Court, and that she be admitted to bail. On the face of the writ itself, it appears that it was issued by Judge Peabody, at chambers; so that there is no foundation for the supposition, that it was issued by the court at special term, but on the contrary, it imports on its face to have been issued by a judge, acting out of court at chambers, in the manner in which proceedings of this description usually, if not invariably originate, and are conducted.

The warden, in obedience to this writ, produced the body of the respondent; at the same time making his return, consisting of the original commitment, the writ of certiorari before Judge Daly, and the order of the Court of General Sessions. The warden’s return was traversed by the respondent, stating “ that her imprisonment and deprivation of bail were unlawful“that the "committing magistrate had not sufficient proofs before him to justify such commitment and she alleges, upon information and belief, “that the papers annexed to her traverse are true copies of such proofs, and the only proofs taken by such magistrate.”

After argument before Judge Peabody, she was discharged on bail.

Those proceedings before Judge Peabody, are now here, on review at general term, for examination and correction, pursuant to the provisions of the Revised Statutes. (2 R. S., 573, § 84, (69.)

Judge Peabody certifies, in his return to this court, that a motion was made by the relator to strike out of the return the papers annexed by the warden, being the certiorari, papers of Judge Daly, and the extract from the minutes of the Court of Q-eneral Sessions, the decision of which- motion he reserved; so that, if the motion ought to have been granted, the respondent is now entitled to the benefit of it.' If it were granted, it is supposed by the respondent’s counsel that nothing would be then legally before us but the mere warrant of the committing officer; and that there would be no proof that any officer, other than Judge Peabody, had judicially considered the legality or expediency of releasing the prisoner on bail.

Are these papers, then, not properly a part of the war- . den’s return; or if not properly an essential and integral part of his return, were they otherwise improperly before Judge Peabody? :Their genuineness is not impeached. It is not disputed that the proceedings took place before Judge Daly, and before the Court of G-eneral Sessions, and that they are duly authenticated; but on an inquiry, under the writ of habeas corpus, it is insisted that they were not fit and relevant subjects of consideration.

If the respondent’s counsel mean to insist that Judge Peabody was bound to- confine himself only to the process of commitment in order to ascertain if it was valid on its face, or to inquire whether the committing magistrate had jurisdiction, those additional papers would indeed be irrelevant, and consequently ought not to have been transmitted to him; but if this was the proper limit of Judge Peabody’s inquiry, his decision was manifestly erroneous, for it is not pretended that the process was void on its face, or that the magistrate had not jurisdiction. If theyinsist, however, as they manifestly do insist, that he had a right to go behind the . commitment and to inquire into the truth of the fact adjudged by the committing magistrate and to determine whether the offence charged was a legal offence, and if the prosecution, on the other hand, deny this and insist, as a preliminary objection, that those questions had been previously decided by an officer and a court of competent jurisdiction, it would be excluding what seems an essential preliminary inquiry, to confine the consideration of the judge at chambers to the mere commitment; and this would, in effect, be to prejudge, without investigation, the most important question presented by the district attorney, or, rather, it would preclude the possibility of considering it. Where the fact of a previous adjudication is insisted upon, and it is right that this fact should be presented to the judge, surely it is essential that proof of it should be placed before him, and whether it comes appended to the warden’s return or is introduced by the prosecuting officer in the shape of proof aliunde, is a matter of no practical importance. This court will not, in any proceedings at chambers, require a strict adherence to technical rules, where justice is not prejudiced but rather promoted, even if they were generally applicable to such proceedings. The truth is, it is not necessary, in order to bring up all the papers deposited with the party who has custody of a prisoner, that a certiorari should also issue. All papers connected with any question cognizable by the judge before whom the prisoner is brought on habeas corpus are properly brought before him simultaneously with the return. It is the duty of the district attorney'to see that the return states every cause that exists for the detention of the prisoner; whether it be a commitment alone, or, as in this case, a commitment and also the order of the Court of Sessions not to bail the prisoner, which were lodged with the warden. It would be a very idle ceremony, when the papers are once before him, for the judge then to issue a writ of certiorari requiring their production. They are produced, and their production being pertinent to the inquiry before him, they are deemed a part and parcel of the proceedings. I will, therefore, in this case, deem the order and papers which were before Judge Daly, and the extract from the minutes of the Court of Sessions, properly before Judge Peabody and properly before this court for review.

The matter, then, as we perceive from this return, from the whole case, and even from the language. employed in the respondent’s petition, shows that, first, the police justice entertained the question of bail and that he decided it; secondly, that the question was brought before Judge Daly on certiorari, and, although I am not quite clear on what ground he decided, he dismissed the writ and refused bail; and, thirdly, that a motion was regularly made in the Court of General Sessions, in which th.e respondent was to be tried; that this motion was made in open court by her counsel, and opposed by the district attorney, and, after hearing both counsel, it was denied.

The judge below seems to be of opinion that the action of the committing magistrate was not final, and that there was not before him (Judge Peabody) any sufficient evidence that the question had been judicially determined by any court or officer having jurisdiction to pass upon it.

If the judge means, by saying that the action of the committing magistrate “ was not final,” that it was properly the subject of review by an appellate jurisdiction, he is probably correct; but if he means that any other magistrate of coordinate or concurrent authority, concurrent, I mean, so far as the question of commitment or bail is concerned, has a right to reconsider the question, that is, to rejudge the judgment of the court which passed on that very question, after hearing the prisoner's counsel, he is, I think, in error; and his opinion is at variance with what I conceive to be the only safe and expedient practice, and with the current of authority on the subject. Propriety and public convenience demand, when a decision is once deliberately made in relation, to any matter properly before a court or judge, and within their jurisdiction, that it should not be disturbed, except by appeal to a higher tribunal; but if one judge be permitted to interfere with another of coordinate or concurrent authority, any other judge can interfere with him, and so it may be continued and repeated through the whole circle of the judiciary, to the great disquiet of the public business and to the reproach and hindrance of public justice. In the case of The People v. Capels (5 Hill, 167), which was to be sure a case of contempt, the court, upon referring to section forty-two of the habeas corpus act (2 R. S., 567) where the statute expressly forbids an inquiry into the justice or propriety of the commitment in such a case, adds: “ If there had been no such statute, it is clear, upon principle, that the judgment or decision of any court or officer of competent jurisdiction cannot be reviewed on habeas corpus. If there had been error, the remedy is by certiorari, or writ of error.” The judge has no authority to inquire into the truth of the fact adjudged by the committing magistrate. In the case of Bennae v. The People (4 Barb., 31), it is expressly decided that when the return to a habeas corpus says that the party is detained on any process, the existence and validity of the process are the only facts upon which issue can be taken. These are what are meant as the material facts within the forty-eighth section of the habeas corpus act (2 R. S., 569), not whether the process was founded on sufficient evidence or any evidence at all. It is unnecessary to refer to other cases. There seems to be a general concurrence with Mr. Hill in the remarks contained in his appendix to the third volume of his reports on this subject: “ That the question whether bail shall be allowed or not is, in all cases of felony, purely judicial, not only before the appellate court or officer, but before the committing magistrate or court. The statutes, in giving power to bail, create no ministerial duty and impose no obligation beyond what rests upon any judge in the exercise of his powers as such. Thus, the direction to the court or officer to proceed and let the party to bail, if the case be bailable (2 R. S., 593, § 30), although mandatory in form, can only mean when it is properly bailable. A literal construction would be absurd.” And again: “The examining magistrate enjoys a peculiar advantage, whether he is a justice of the peace or coroner, for determining the weight of evidence. It is made the duty of both to examine the witnesses for the prosecution and reduce their testimony to writing in the form of depositions. The magistrates have considerable power in compelling the attendance of witnesses.”

But, in addition to the adjudication of the committing magistrate,. Judge Daly entertained the question. . There' seems, at all events, to have been some discussion of it before him. As I have no reason, from the report before me, to feel assured that he passed upon the merits of the , question, and as it is possible that he dismissed the matter on the ground that he did not consider it discreet to decide the question, or, more probably still, that it was res adjudicates, it is not, perhaps, expedient to deem his action, in reference to this subject, an adjudication. Indeed, the same objection would apply to his action in the matter, as to Judge Peabody’s. With regard, however, to the decision of the Court of General Sessions, it is quite certain that the court had possession of the subject, and complete, undeniable jurisdiction of the person of the respondent. She was triable in that court; and they had power to let her to bail, if they thought proper. (2 R. S., 710, § 34 [31] ). Being a party in a cause pending there, the application was properly made in her behalf by motion; and if properly made by motion, in a court in which she was a party to an action, both contestants being represented, and virtually present, no habeas corpus was necessary to bring her body before the court. On an application by motion, whether in a civil or criminal action, the bodily presence of the party making it can answer no purpose whatever. It is sufficient for the court to be assured that the application was made with the consent of the party. For us, it is only necessary to know that the court had power to entertain the motion, and that, in the exercise of this lawful authority, they did entertain it. Indeed, when the people make a motion against an accused party, the effect of which may be a judgment, the body ought to be brought up (1 Park. Cr. R., 360, obs. Judge Mitchell); and, perhaps, as against a prisoner, the presumption of duress constantly exists, it is generally incumbent on the people, in every antagonistic step, to see that this forced jurisdiction is perfect. Without reference, then, to Judge Daly’s decision, we find that two tribunals of competent authority adjudicated upon this question of bail; that, so far as we know, the matter was fully and deliberately considered by them; that the committing magistrate, to employ Mr. Hill’s language, had peculiar advantages in- arriving at a correct decision, and that the magistrate who discharged the prisoner on bail had no new state of facts before him to justify his interposition. He had, plainly, no better means than the police justice, if as good,, of ascertaining whether the respondent was entitled to bail, or whether it would promote the ends of justice to admit her to bail. We do not believe that it would be consistent with the well established practice, or with the public safety, to allow one magistrate to disturb the decision of another magistrate, still less that of a court, in cases where the decision is founded upon deliberate inquiry into the merits. And, if we had to make a rule on this subject for the first time, we would consider it decidedly best to confine the reexamination of decisions upon all subjects, as we think the law has long confined it, to an appellate tribunal, according to the usual course and practice of proceedings for the examination and correction of errors in an inferior jurisdiction.

In this case, the very issue joined on the motion in the Court of Sessions was, whether the prisoner should be let to bail, not whether certain bail were sufficient. That issue was decided against her, and was conclusive in every tribunal, except on appeal. It is unlike the question whether certain bail are sufficient; that does not preclude a new application for a discharge on offering other bail, for in such a case the first issue was not the same as the second; the first was whether the first bail were good; the second, whether the second bail were good.

Having arrived at this conclusion, it is unnecessary to consider the other questions entertained by Judge Peabody.

The court are unanimously of opinion that the proceedings should be reversed.

Proceedings reversed.


author: By the Court, Marvin, J.

text:
    Supreme Court. Erie General Term.
    November, 1857.

      Davis, Greene and Marvin, Justices.
    Alonzo P. Warren, plaintiff in error v. The People, defendants in error.
    Keeping a bawdy house was an indictable offence at common law, and a person accused of it was entitled to a trial by jury, that right being secured by the state constitution of 1821; the provision of the Revised Statutes (IS. 8., 638, § 1), by which keepers of bawdy houses are declared disorderly persons, and subjected to summary punishment, is unconstitutional and void.
    The same constitutional provision being retained in the state constitution of 1846, a person arrested and brought before a magistrate has a right to give bail for his appearance before the next grand jury; and where such right was denied, and the defendant subjected to summary conviction before the justice, the conviction was reversed.
    Certiorari to a justice of the peace. Complaint was made on oath to the justice of the peace tliat Warren is a disorderly person within the intent and meaning of chapter eighty-six, section fourteen of the Session Laws of 1855, and the Revised Statutes; for, that Warren, on the 12th day of December, 1856, and on divers other days before and since that date, in, &c., did and does keep a bawdy-house, or house for the resort of prostitutes, drunkards, tipplers, gamesters and other disorderly persons, and did make a noise and disturbance of the public peace, and did quarrel in view from a public place or street, to wit, at, &c. The justice issued his warrant, reciting in it the complaint. The defendant was arrested and brought before the justice, and pleaded not guilty. The cause was adjourned to the next day, at the instance of the defendant, when the defendant moved to be discharged upon the ground, among others, that the statute referred to is unconstitutional, as it creates a new court, and does not provide for trial by jury. The motion was denied. The defendant then asked to be tried by the next Court of Sessions, or before the justice, as he might elect. He offered to give bail for his appearance at the next Court of Sessions to be held in the county, and he objected to his being placed on trial except by a jury of twelve men ; also objected to be tried except by a jury of six men. He objected to the jurisdiction of the justice. Bail was refused and the objections were overruled, and the justice proceeded to the trial. Numerous witnesses were examined. At the close of the evidence by the people, the defendant moved that he be discharged, provided he give sufficient securities for his good behavior for the space of one year, according to the Revised Statutes. The motion was denied, and the justice convicted the defendant of the offence charged, and adjudged and sentenced that he should be imprisoned in the common jail of Niagara county for the term of six months, and pay a fine of fifty dollars, and that he stand committed until the fine be paid.

      A. P. Floyd, for plaintiff in error.

      A. W. Brazee, for defendant in error.
   By the Court, Marvin, J.

The counsel for the plaintiff in error insists that the law under which the conviction was had is unconstitutional: First. Because it denies the right of trial by jury, in a case in which it has been heretofore used. Second. Because it establishes a new court, which does not proceed according to the course of the common law. Also, that the conviction is void, as the penalties imposed by the Revised Statutes and the act of 1855, are different.

Previous to examining the act of 1855, it will be proper to notice the Revised Statutes, “ Of disorderly persons,” in which it is declared, among other things, “ that all keepers of bawdy-houses, or houses for the resort of prostitutes, drunkards, tipplers, gamesters or other disorderly persons,” &c., “ shall be deemed disorderly persons.” (1 R. S., 638, § 1.) Upon a complaint on oath to a justice of the peace against any person, as being disorderly, the justice is required to issue his warrant, and to cause such person to be brought before him for examination. If it appear that; such person is a disorderly person, the justice may require of him sufficient sureties for his good behavior for one year; and in default of such sureties, the justice is to make up, sign and file, in the county clerk’s office, a record of the conviction of such offender, as a disorderly person, specifying generally the nature and circumstances of the offence, and by warrant, commit such offender to the common jail, there to remain until such. sureties be found, or such offender be discharged according to law.

Two justices may discharge the prisoner from jail upon his giving the sureties required. If not discharged, the Court of General Sessions is to inquire into the circumstances, and may discharge such person from confinement, &c., or may, in its discretion, order such person to be kept in the common jail, for any time not exceeding six months, at hard labor, &c. The provisions of the Revised Statutes are taken mainly from an act passed February 9, 1788. (1 R. L., 114, § 1.) By that act the justice was authorized to commit such disorderly persons to the bridewell or house of correction, for any time not exceeding sixty days, or until ■ the next General Sessions of the peace. The General Sessions had the power to detain and keep such disorderly person for any further time, not exceeding six months.

It is sure, that neither by the Revised Laws nor the Revised Statutes, was any trial by jury given in proceedings against disorderly persons. The whole power was, in the first instance, confided to a justice of the peace, and until the Revised Statutes, he was not authorized to take sureties, except as to persons who, for the most part, supported themselves by gaming. (1 R. L., 154, § 9.)

It is proper to remark that I do not find “ keepers of bawdy-houses” mentioned in the statutes relating to disorderly persons, prior to the Revised Statutes. It is clear that the trial by jury was not used prior to the constitution of 1821, or 1846, in cases relating to disorderly persons, as defined by the statute, and reserving the case of the “ keepers of bawdy-houses,” there can be no question that the legislature has the power to provide for the examination and trial of disorderly persons, without a jury.

Keeping a bawdy-house was, and is, an indictable o Hence at common law (l Russ. on Cr., 322), and the person, when indicted for this offence, has a right to be tried by a jury. May the legislature in revising the laws from time to time, or by new-statutes, declare that persons doing certain acts, which acts by the common law or by statute are crimes, indictable and punishable as such, disorderly persons, and thus subject them to the summary proceedings and punishment before and by a justice of the peace, or any court, without a jury?

By the statute under which the justice acted, it is provided that, in addition to those persons described in section one, title five, chapter twenty, of the Revised Statutes, all riotous persons, or persons found quarreling or fighting in any alley, street or lane, or in any public place, street, lane or alley in said village, and any person who shall make any indecent exposure of his person in public view, and specifying many other acts, it is declared shall be deemed disbrderly persons, and that they be proceeded against and punished according to the provisions of the act. (Laws of 1855, 129, § 14.) By section sixteen, the justice is authorized to try and determine the complaint or charge, and upon conviction, he has the power and is authorized to punish such offender by fine not exceeding $50, or by imprisonment in the county jail at hard labor or not, for a term not exceeding six months, or both such fine and imprisonment.

It will be noticed that the act does not mention “ keepers of bawdy-houses, or houses for the resort of prostitutes, drunkards, tipplers and gamesters, or other disorderly persons.” This is the language of the Revised Statutes. The act of 1855 introduces its specification with the language : “ In addition to those persons described in section one, &c., of the Revised Statutes, all riotous persons, &c., shall be deemed disorderly persons,-and maybe proceeded against and punished according to the provisions of this act.” Quere. Had the justice any power under the act to proceed against and punish any persons except such as are charged with the acts specified in this statute ? Could he apply the provisions of this act, touching trial and punishment, to the cases specified only in the Revised Statutes? The act says, “ When any person charged or complained against as a disorderly person under the provisions of this act shall be arrested ” the justice may try. Are we to incorporate in the act all the cases specified in the Revised Statutes? I certainly have great doubt whether the language in this statute is sufficient to bring into the statute all the cases specified in the Revised Statutes as constituting disorderly persons, and thus subject them to a summary trial and punishment by the justice. If not, then the proceeding was under the provisions of the Revised Statutes, as to the charge of keeping a bawdy-house, or house for the resort of prostitutes, &c., and the justice had no right to try and punish the accused under the act of 1855, but he should have required sufficient sureties for his behavior for one year, or, in default, should have committed him. to jail, pursuant to the provisions of the Revised Statutes. But I will waive this view of the case, and proceed to inquire whether Warren had the constitutional right to be tried by a jury. The principal charge, and of this he was convicted, was the keeping of a bawdy-house, or house for the resort of prostitutes, &c. As I have already stated, the keeping a bawdy-house was and is an indictable offence at common law, and any person tried for such an offence has always been tried by a jury. I do not find that this offence was ever classed with those constituting disorderly persons prior to the Revised Statutes. At the time the Revised Statutes were enacted, the constitutional provision touching trial by jury was the same as it now is. I am not aware that “keepers of bawdy-houses” have ever been proceeded against as disorderly persons under the Revised Statutes. Certainly, they have never been subjected to trial, fine and imprisonment by a justice of the peace without a jury. Had the legislature the power, when the Revised Statutes were enacted, to declare the keepers of bawdy-houses disorderly persons, and in that way subject them to imprisonment, as provided in the Revised Statutes, without a trial by jury ? In my opinion, it had not such power. Keeping a bawdy-house was, at that time, a criminal offence, and indictable at common law as a nuisance. The legislature could not, by classing it with those acts which constituted disorderly persons, withdraw from the person charged with the offence the right which the constitution had secured to him of a trial by jury. As we have seen these were offences that might be summarily tried, and, under certain circumstances, without a jury, prior to the adoption of the constitution either of 1821 or 1846. Now, if the legislature can take any of the well known crimes which had been used theretofore to be tried by a jury, and by classing them with those cases or crimes which could be tried without a jury, it could entirely destroy the security provided in the constitution.

In Wood v. City of Brooklyn (14 Barb., 432), Justice Strong says : “ This provision relates to classes, and of course includes the individual cases which they comprise. In no other way can constitutional enactments preserve that continued efficacy which is so essential for the public good. Whenever, therefore, a new case is added to a class it becomes subject to its rules.” He applied these rules to a newly enacted penalty. He adds: “ To allow the legislature to except from the operation of a constitutional provision by direct enactment, a matter clearly falling within its meaning, would sanction a fraud upon its organic law, and might, in the end, destroy its obligation.” (The People v. Berberrick and Toynbee, 11 How. Pr. R., 336; The People v. Kennedy, 2 Park. Cr. R., 312.) In the latter case Justice Parker says : “ If the accused, in a trial of this grade, had the right to a trial by jury, in the constitutional sense of the word, when the constitution took effect, his right cannot be taken away by a subsequent act of the legislature. It is no answer to say that this offence did not exist at the time the constitution took effect, but has since been enacted by statute. If the offence be such that it could have been entitled to a trial by a jury, if enacted before the constitution was adopted, it cannot be deprived of the same right when enacted afterwards.” These remarks were in cases where the crime was enacted since the constitution. They furnish the rule in such cases, viz., that where the legislature vote a new offence it is placed on the same footing as other previous offences of the same grade or class, and is equally governed by the constitution;

The legislature has, as we have seen, from time to time revised the statutes in relation to disorderly persons, and added new cases; and the legislature may, I have no doubt, continue to do so; and if the acts which shall be specified as constituting a disorderly person are of a similar character, grade or class with those previously constituting a disorderly person, the law may provide for proceeding against such persons without a jury, as a trial by jury has not, in such cases, been heretofore used. It will not be difficult, upon an examination of the laws relating to disorderly persons, to discover their general character. (4 Bl. Com., 169, So, also, the Revised Statutes, “ Of disorderly persons,” excepting as to the keepers of bawdy-houses, and houses for the resort of prostitutes, &c., jugglers, common showmen, mountebanks, &c., &c. If the keeping of a bawdy-house had not been an indictable offence it is quite probable that it might have been classed by the legislature with those cases constituting disorderly persons, and have been dealt with in the same manner. But the difficulty is that such offence was an indictable crime, and so triable by jury; and when a person is charged with this crime he has a right, by the constitution, to be tried by a jury. The accused offered to give bail, and the justice should have taken it. The accused was deprived of an important constitutional right, and the conviction and sentence must be reversed.


author: By the Court, S. B. Strong, P. J.

text:
    Supreme Court. Kings General Term,
    October, 1857.

      S. B. Strong, Birdseye and Emott, Justices.
    The People v. John Bush.
    On the trial of an indictment for burglary, it appeared that the building in question was owned by G., that there were several apartments in the house, all of which were occupied by tenants, the outer or hall door being common to all the occupants, and of these apartments, the one alleged to have been broken and entered, was occupied by W.; held, that the apartment alleged to have been broken and entered, was properly laid in the indictment, as the dwelling house of W.
    Also, Meld, that in the absence of positive evidence on the point, whether the outer door and the door of the room in which the prisoner was found were latched, at the time of the entry of the prisoner, it was competent to prove that these doors were generally kept closed or shut, it having been shown that both the doors were latched ten or fifteen minutes previous to the alleged entry.
    Opening a street door which is only latched, is a sufficient breaking to constitute burglary at the common law; but simply lifting the latch of an outer door, though still a sufficient breaking to constituid burglary in an inferior degree, is not a breaking within the statute definition of burglary in the first degree.
    The court has a right to direct a jury to reconsider their verdict before it has been recorded, and it is its duty to do so, if satisfied there has been a palpable mistake.
    Certiorari to the Court of Sessions of Kings county, where the defendant was convicted of burglary in the second degree.
    The indictment in this case charged the defendant with burglary in the second degree, in breaking and entering the dwelling-house of one John Wood, on the 18th of May, 1857, by breaking an outer door, and stealing one pair of pantaloons of the value of six dollars.
    The evidence showed that John Wood and his family occupied apartments at 258 Myrtle-avenue, consisting of the basement, first floor and part of the third floor; that the rest of the house was occupied by other families, and that the outer or hall door was common to them all; that on the eighteenth day of May, in the daytime, Anne Wood, the wife of the said John Wood, came up from the basement, and found the defendant in her room with a pair of her husband’s pantaloons on his arm ; she asked him what he was doing with them, when, making no answer, he threw them down, and ran out of the front hall door; the pantaloons were worth about $4.50; that the house belonged to Mr. Gascoyne, who did not reside in it.
    The testimony on the part of the prosecution further showed, that on the day in question the hall door was not locked or fastened, and that the door leading from the hall into the room in which the defendant was found, was not locked or fastened either; that neither of the doors were broken or forced open, and that the tenants in the house were constantly going in and out the hall door, and that no person knew when or how the defendant got into the room. It was further proved, that there was no person in the room in which the defendant was found, except himself.
    The counsel for the prosecution was suffered to prove that the hall door was generally closed or shut, and that the door of the room in which the prisoner was found was generally kept shut; to which evidence the prisoner’s counsel excepted. It also appeared that strangers frequently obtained admittance to the house without the previous knowledge of the inmates.
    The counsel for the defendant requested the court to charge the jury, first, that there was no evidence of a breaking and entry sufficient to warrant a conviction for burglary; second, that there was no evidence of a burglary at all; third, that there must be an actual or constructive breaking into the house ; every entrance into a house by a trespasser is not a breaking, but that there must be evidence to show that the doors were fastened; fourth, that the prisoner could only be convicted of petit larceny.
    The court declined so to charge the jury, and refused to charge other than as follows: That an actual breaking was necessary; that the smallest degree of force, such as lifting the latch, turning the handle, or pushing aside any obstacle which impeded the entrance of the party coupled with felonious intent, was sufficient; that it was for the jury to say, from the evidence, whether the prisoner was guilty or not; that if the jury had any reasonable doubt as to the guilt of the prisoner, he was entitled to the benefit of that doubt.
    To which refusal the prisoner’s counsel excepted.
    The jury found the prisoner guilty of burglary in the third degree.
    The court then directed the jury to retire, and directed the jury that under the testimony the prisoner could only be convicted of petit larceny, or burglary in the second degree, and that he could not be convicted of burglary in the third degree.
    To all of which, the prisoner’s counsel then and there excepted.
    The jury, upon returning, said they found the prisoner guilty of burglary in the second degree.
    The prisoner’s counsel objected to the reception and entry of said verdict, but the court overruled the objection; to which the prisoner’s counsel duly excepted.

      James Troy, for the defendant.
    I. The court erred in overruling the objection of the prisoner’s counsel to the question, “Was- the hall door generally closed or shut?”- Such a question must have been based upon the assumption that if the door was generally shut, it was probably shut on the day in question, and if so shut, the prisoner probably opened it; a man cannot be convicted on a mere probability.. ( The People v. Bodine, Whart. Cr. L., 283; Bemis’ Webster case, 462-464.)
    II. The court erred in overruling the objection of the prisoner’s counsel to the question, was the door of- the room in which the prisoner was found, generally kept shut. The question must have been based upon the same assumption as the other. (Ib.)

    TIT. The court erred in refusing to charge the jury, that there was no evidence of a breaking sufficient to warrant a conviction for burglary. To warrant a conviction for burglary, it is necessary that there should be a breaking and entering into a dwelling-house with a felonious intent; the evidence showed that there was no breaking, and there being no evidence to show how the defendant came into the house, it was improperly left to the jury. (2 R. S., 668, §§ 10, 11.)
    IV. The court erred in refusing to charge the jury, that there was no evidence at all of a burglary. The prisoner was caught in the commission of a larceny; the act of stealing was evidence of the intent to steal, but the commission of larceny is no evidence of a burglary, and a breaking cannot be presumed where it is proven that there was none. (Whart. Cr. L., 268; Hiler v. The State, 4 Blackf., 552; 1 Phil. on Ev., 47.)
    V. The court erred in refusing to charge the jury, that there must be an actual or constructive breaking into the house; every entrance into a house by a trespasser is not a breaking; but that there must be evidence to show that the doors were fastened. (The State v. Wilson, Cox, 439; Whart. Cr. L., 512 ; 3 Greenl. on Ev., 70-72.)
    VI. The court erred in refusing to charge the jury, that the prisoner could only be convicted of petit larceny. In the absence of any proof of a burglary, and the only evidence being that the prisoner was caught stealing a pair of pantaloons worth $4.50, the court was bound so to charge. (Carpenter v. The People, 4 Scam., 197 ; The People v. Jackson, 3 Hill, 92; Johnson v. The State, 14 Geo., 55.)
    VII. The court erred in directing the jury to retire, after they rendered a verdict of burglary in the third degree. ( Whart. Cr. L., 923.)

      ■YIII. The court erred in instructing the jury that the prisoner could only be convicted of burglary in the second degree, or petit larceny, and that he could not be convicted of burglary in the third degree. If the defendant could have been convicted of burglary at all, it must have been burglary in the third degree, because it was proven that there was no person but himself in the room in which he was found; that- room, for all the purposes of the indictment, was the dwelling-house of John Wood, and to convict the prisoner of burglary in the second degree, it should have been established that there was some human being therein when the prisoner entered, but the prisoner could not be convicted of burglary at all. (2 R. S., 668, §§ 10, 11; 1 Russ. on Cr., 800, 803 ; 3 Greenl. on Ev., 70.)
    IX. The court erred in receiving and entering the verdict of burglary in the second degree. The jury had previously rendered a .verdict of burglary in the third degree, and they could not render two verdicts, or convict the prisoner twice. It was also known to the court that one of the jurors was a German, and did not understand the verdict or proceedings, or what .had transpired on the trial; and that the verdict of burglary in the second degree was, in point of fact,, only the verdict of eleven jurors instead .of twelve. (Barb. C. L., 369.)

      J. G. Schumaker (District Attorney), for the people.
   By the Court, S. B. Strong, P. J.

The defendant was convicted of the crime of burglary in the second degree, at a Court of Sessions in the county of Kings. • Several objections were raised, by his counsel, to fhe. proceedings during the trial, and have been repeated in this court, the more material of which I shall consider.

The indictment charges that the crime was committed in the dwelling-house of John Wood. He occupied two apartments in the house, and there were' several tenanted by others. The outer or hall door was common to all the occupants. The rooms occupied by Wood constituted his dwelling-house within the requirements of the law. It has been decided that chambers in a college or inn of court, where each individual has a distinct property, are considered as separate mansions, though under the same roof and having a common entrance. (1 Hale, 556.)

Neither the hall door nor the door of the room in which the defendant had been discovered, was locked. If these doors were shut, he had simply unlatched them when he made his entrance. There was no one in the apartment when he entered it. The wife of the tenant testified that she had left the door latched when she left the room, about fifteen minutes before she returned and discovered the defendant, and that the hall door was also latched when she saw it, about ten minutes before; and she farther testified (after an objection had been taken and overruled) that both doors were generally kept closed. I am satisfied that this evidence was properly admitted. The proof that the doors had been so recently shut fairly led to the inference that they were closed at the time, which was strengthened by the general custom. Had no other proof but that of the general habit been introduced, I doubt whether that alone should have been received, and, if admissible, it would have been too uncertain to have warranted the conclusion that the doors were closed when the defendant reached them.

It is well settled that unlatching a door which is only latched is a sufficient breaking to constitute burglary at ° the common law. (1 Hale, 552; 2 East’s P. C., 487; 3 Chit. Cr. L., 1093.) The rule has been recognized by the Supreme Court of this state. (Curtis v. Hubbard, 1 Hill, 238, per Cowen, J.)

The court had a right to direct the jury to reconsider . their verdict before it had been recorded, and it was its duty to do so, if satisfied that there had been a palpable mistake. (1 And., 104; Alleyn, 12; Plowd., 211, b.; 2 Hale, 299, 300, 310; Hawk., b. 2, c. 47, § 11; Bro. Abr., 7, “Jurors;” Bac. Abr., "Verdict,” G.)

I think, however, that the court erred in instructing the jury that this was a case of burglary in the second degree, or of petit larceny. Probably it was supposed to be included in that section of the statute which provides that “ Every person who shall be convicted of breaking into any dwelling-house in the day-time, under such circumstances as would have constituted burglary in the first degree if committed in the night-time, shall be deemed guilty of burglary in the second degree.” (2 R. S., 668, § 11.) To constitute burglary in the first degree there must be forcibly bursting or breaking the wall or an outer door, window or shutter of a window, or the lock or bolt of such door, or the fastenings of such window or shutter, or breaking in any other manner, being armed with some dangerous weapon, or with the assistance and aid of one or more confederates, then' actually present, or by unlocking an outer door by means of false keys or by picking the lock thereof. (Id., 668, § 10.) In this case there was neither. The forcibly bursting or breaking an outer door means, in common parlance, more than simply lifting a latch. That the first subdivision of the tenth section must have designed something further is apparent from the third subdivision, which provides that unlocking an outer door by means of false keys, or picking the lock thereof, shall be a sufficient breaking to constitute burglary in the first degree. The provision would have been wholly unnecessary if simply unlatching the door would have been deemed bursting or breaking it within the meaning of a former part of the same section. Clearly there is no other statutory definition of burglary in the second degree which comprehends the crime perpetrated by the defendant, as proved on his trial.

For the error of the court in charging the jury that this was a case of burglary in the second degree, or petit larceny, and which led to an improper conviction, such conviction must be set aside, and there must be a new trial in the Court of General Sessions.