author: Knox, J.

text:
    Supreme Court. Cayuga Special Term,
    January, 1860.
    Before Knox, Justice.
    The People v. Edward H. Rulloff.
    The question of a prisoner’s guilt or innocence of a crime for which he is indicted, can in no case be decided on an application for a discharge on habeas corpus.

    The presumption of innocence to which a prisoner is entitled on a trial before a jury, is not applicable to proceedings on habeas corpus.

    To subject a prisoner to a second trial, where a former conviction on the indictment has been reversed, and anew trial ordered, by a court of review, on the application of the prisoner, is not a violation of the constitutional provision which declares that “no person shall be subject to be twice put in jeopardy for the same offense.”
    The provisions of the Revised Statutes, under which a prisoner is declared to be entitled to his discharge if not brought to trial before the end of the next term of the court, unless satisfactory cause be shown by the district attorney (31?. S., 5th ed., 1029, 1030), are not a “ statute of limitationsa failure to comply with them would be a mere irregularity, and would not entitle a prisoner to be discharged on a writ of habeas corpus.

    Nor is it a sufficient cause for discharge on habeas corpus that the prisoner was not present in court when the trial of the indictment was postponed till the next term of the court, though it was the right of the prisoner to be present.
    The prisoner was brought up on a writ of habeas corpus, and the grounds on which he claimed to be discharged are sufficiently stated in the opinion of the court.

      E. H. Rulloff, in person.

      D. Wright, for sheriff.
   Knox, J.

The question to be decided arises upon a writ of habeas corpus, issued to the sheriff of the county of Cayuga, to inquire into the cause of the detention by him of Edward H. Rulloff, the relator, the return of the sheriff to such writ, the allegations and proofs of the prisoner, and the allegations and proofs offered by the district attorney of the county of Tompkins. From these the following facts appear:

That on the 18th day of December, 1845, the prisoner was indicted at a Court of Oyer and Terminer, of the county of Tompkins, for the murder of Harriet Rulloff, in the county of Tompkins, on the 24th day of November, 1845. That in the month of September, 1847, the prisoner was arraigned on these indictments, and pleaded that in the month of February, 1846, he had been convicted of a Court of Oyer and Terminer, held in the county of Tompkins (Hiram Gray,' justice), of having abducted her or taken the said Harriet Rulloff out of the country, and against her will, which conviction still remains in full force and virtue. That upon the trial for abduction the jury were charged among other things, in substance: “ That if they should find that at the time of her disappearance, the said Harriet had in fact been murdered in the county, then they should acquit the prisoner of abduction, and that to convict of abduction, they should find that at the time of her disappearance, she had in fact been taken out of the county alive, and against her will.”

That in June, 1856, at a Court of Sessions in Tompkins, the prisoner was indicted for the murder of his infant daughter, upon which, at the Tioga Circuit, held in October, 1856,-the said indictment having been removed into the Supreme Court for trial, the said Rulloff was found guilty. That a writ of error with stay of proceedings, having been afterward allowed, the Court of Appeals reversed the judgment, and ordered a new trial, and remitted the case for further proceedings. That in July, 1859, the prisoner sued out a writ of' habeas corpus, and on being taken before the general term of the Supreme Court, at Cooperstown, the case was set down .for trial at the October term, of the Tioga Circuit, 1859. That at the Tioga Circuit an order was entered by direction of the presiding justice, on motion of the district attorney, without any appearance of said Rulloff, but in his absence and without his consent or knowledge, continuing the said indictment to the next term of the Circuit Court, to be held in the county of Tioga. That since the filing of the remittitur, the district attorney has allowed the May general term, of the .Supreme. Court, in and for the 6th district, several circuits and special terms of said court, and the spring term of the Tioga Circuit to pass, keeping the prisoner in custody' upon this charge, without moving for a new trial or bringing the prisoner into court, or making any other motion in the case, except the motion made as aforesaid, to continue said indict- ■ ment in the Tioga Circuit, in October, 1859.

That an indictment was found against the prisoner, at the Court of Sessions of Tompkins county, in July, 1859, for breaking jail on the 5th day of May, 1857. That a warrant was issued on said indictment, and delivered to Edward P. Hoskins in July, 1859, on which the prisoner was arrested in July, 1859, and having been confined in the jail of Tompkins county, was transferred to the jail of the county of Cayuga, by an order of the county judge of the county of Tompkins, on the ground that the jail of the county of Tompkins was unsafe for his confinement.

On these facts, the prisoner ásks to be discharged, and rests his demand on these grounds:

1st. As to the murder of Harriet Rulloff. The conviction for abduction, and the indictment for the murder of Harriet Rulloff, being both for the same substantial matter, though charged as different offenses, the conviction for abduction, while unreversed, is an absolute bar to the prosecution for murder.
2d. The failure to bring the prisoner to trial within the time prescribed by the statute, entitles the prisoner to be discharged. That by the statute he acquires this right, which no subsequent proceedings can divest him of, and that, so far as relates to the offense charged, he is ever after entitled to' a discharge.
3d. That as to the murder of his infant daughter, the prisoner has been once tried, within the intent and meaning of the Constitution, and is therefore entitled to his discharge.
4th. That the order made in his absence, at the Tioga Circuit, was and is void, as without jurisdiction, and so he is entitled to his discharge, for the reasons stated in the second point.
5th. That as to the charge of breaking jail,.the neglect of the district attorney to bring him to trial at either of the subsequent terms of the Tompkins Sessions, or show cause for delay, entitles hiru to a discharge.

The importance of this case to the prisoner, and the great interest manifested by the public in regard to it, rather than any difficulty in arriving at what I deem a proper conclusion, have led me fully to state the causes of the detention of Rulloff, and his allegations and my reasons at length, for a decision which otherwise would have been made at the close of the hearing.

It would, perhaps, be a sufficient answer to the application for his discharge, to say, that, admitting all he claims, to wit: that under these proceedings we have a right to try the question of a prisoner’s guilt or innocence, though charged on indictment, and that he is innocent of the charges alleged against- him and should be discharged, after the district attor-' ney has suffered two sessions of the court in which the indict-’ ments are triable, to pass without bringing him to trial, or showing cause for continuing the indictments, there is no evidence before me, that since his arrest and confinement on the indictment for breaking jail, any terms of the Court of Sessions in the county of Tompkins, at which he could have been tried, have been held. There is no evidence, therefore; on which to found the allegation that he has a right to be discharged, which has become absolute and which cannot be divested. But I shall put my refusal to discharge him on no such narrow ground.

All the objections made by the prisoner rest upon fundamental errors. He mistakes and misstates the office of a writ of “ habeas corpus.” He assumes that the officer granting it has a. right to try the question whether a prisoner indicted is “ guilty or not guilty ” of the crime of which he is charged. This is not the case. The- history of the writ, the nature' of it, and the practice under it, both as a common law remedy and as extended and modified by statute in England and in this country, show that it never was contemplated that such a trial was to be had: The only way in which this question can be tried, is by the intervention of a jury before a proper court; and in a capital case it has been but recently held by the Court "of Appeals, that the person charged cannot be tried, even by his own consent, except by a" jury of twelve men. (Cancemi, plaintiff in error, v. The People, defendants in error, 18 N. Y., 129.) The writ issues to inquire into the grounds upon which any person is restrained of his liberty, and when it is found that his restraint is illegal, he is to be delivered. It certainly cannot be said that a'person’s restraint is illegal.when he is held upon two indictments" for felonies of the first class, and'upon one indictment for a misdemeanor, ■ on each of which, in a proceeding of this nature, he is supposed to be guilty of -the offenses with which he is charged, though on a trial by a jury his entire innocence will be presumed. In the case of McLeod (1 Hill, 377), Justice Gowen held, and such was the opinion of the late ¡Nicholas Hill (see note in third vol. of Hill, 658), that the fiftieth section of the habeas corpus act is satisfied by limiting the inquiry to the lawfulness of the authority under which the prisoner is detained without , being extended to the force of the evidence upon which the authority was exerted, on which it may be in the prisoner’s power to. adduce at the trial. Though able judges since have dissented from this proposition, and held that the Supreme Court, in the exercise of its appellate jurisdiction in criminal matters, or any member of it, when the commitment was by . an examining magistrate before trial, may not only review the ground of commitment upon which the magistrate has acted, but hear new proof, and bail or remand the prisoner, as the justice of the case may require; no one has decided that a party duly committed on a regular indictment, can be discharged on habeas corpus by proving his innocence, however clear the proof may be. The question was asked on the hearing : ■“ Suppose a person is indicted for the murder of A. B., and committed, and subsequently A. B. is produced alive, may not that person, on habeas corpus, on producing A. B. alive before the officer, be acquitted and discharged of the offense as on a trial?” I answer, no. A trial in court and an acquittal by a jury, or the entering of a nolle prosequi by the district attorney, by order of the court in which the indictment is pending, are the only méthods by which the prisoner can be fully discharged.

It is not necessary to say whether in the case supposed the officer might not properly let to bail. If, in a given case, it appeared by the indictment, that no offense was charged, that is to say, if the act charged as having been committed by the prisoner constituted no offense, as if, for instance, the prisoner was held on an indictment which charged “that he had absented himself from the State, and he was guilty of a mis demeanor,” there would be nothing to try, and the prisoner 'might be discharged. But when there is an offense charged a jury must come. If the officer issuing the writ, can try the question which the prisoner asks him to try, and decide it in his favor and acquit, why may not the officer decide it against, him and punish. If he can say he is not guilty, why may he not say he is guilty. This inevitably follows from the right to try, and then how would the officer execute his judgment? It would be a novel proceeding were an officer authorized to try and acquit, but not tó convict. Such an officer would soon, I apprehend, monopolize all the ■ criminal business of the 'country, especially when the persons tried were really guilty.

I have said enough, and perhaps too much, on this point.

How, as. for the point that he cannot be twice tried for the same offense. I say, the conviction for the murder of his infant daughter having been reversed and a new trial ordered, matters stand as if there never had been any trial on the indictment. In fact, in the eye of the law, he has not yet1 been tried. Errors were committed on the trial which made it necessary to set aside the conviction, and it is a little strange, - if the objection is tenable, that the counsel of the prisoner did not suggest to the Court of Appeals the propriety of discharging the prisoner, in case they found that, the conviction should be set aside, on the ground that the “corpus delicti'1'’ had not been proved.

As to the right to be discharged because of the delay in bringing the prisoner to trial, let us see what the statute says: “If any prisoner indicted for any offense, triable in a Court of Sessions,- and committed to prison, whose trial shall not have been postponed at his instance, shall not be brought to trial before the end of the next term of the Court of Sessions which shall, be held in the county in which he is imprisoned after such indictment found, he shall be entitled to be discharged so far as relates to the offense for which he is committed.”

“ If any prisoner, indicted for any offense not triable in a Court of Sessions, but which may be tried in a Court of Oyer and Terminer and committed to prison, whose trial shall not have been postponed at his instance, shall not be brought to trial before the end of the next Court of Oyer and Terminer which shall be held in the county in which he is imprisoned, after such indictment found, he shall be entitled to be discharged, so far as relates to the offense for which he was committed.”

“ If satisfactory cause shall be shown by the district attorney, to any court to which application should be made, under either of the two last sections,, for detaining such prisoner in custody or upon bail, until the sitting of the next court in which he may be tried, the court shall remand such prisoner, or shall hold him to bail, as the case may require.” (3 R. S., 5th ed., pp. 1029, 1030, §§ 30, 31, 32.)

These sections are not a “statute of limitations.” They are intended to regulate the practice of the courts, and a failure to comply with them would be a mere irregularity. But, as a matter of fact in this case, after the prisoner had, by writ of habeas corpus, been brought before the Supreme Court in the sixth district, a new trial in the case of the indictment for the murder of his infant daughter was ordered, while the prisoner was present, to be had at the next Tioga Circuit. At this circuit, the indictment was continued till the next circuit to be held in Tioga. When this order was made, the prisoner was not present. Although he ought, properly, to have been present, and had a right to be, the order continuing the indictment without his presence, was a mere irregularity, and it is well established that a mere irregularity cannot be reached by habeas corpus.

The prisoner asks, “ How then am I ever to be discharged, if the district attorney will not move my trial; and the courts will not discharge me as the statute provides, or on a writ of habeas corpus ?” To this it may be said, that it is not, to be supposed that courts, judges, or other officers, will not do their duty, but the contrary. The statute provides that, previously to every court, the district attorney shall issue his precept, commanding the sheriff to bring all his prisoners before the court, with all papers and process relating to each, which precept the sheriff must obey (2 R. S., 309, sec. 23, 4th ed.); and then, unless satisfactory cause be shown for detaining him, he may be discharged.

I hold, therefore, that the prisoner must be remanded, and be discharged after trial and acquittal, or by the entering of a nolle proseguí by the district attorney, or by order of the court under the sections of the statute already quoted.


source: Caselaw Access Project

author: Lott, J.

license: Public Domain

text:
    Supreme Court. Kings General Term,
    February, 1860.

      Lott, Brown and Emott, Justices.
    Peter J. Dempsey, plaintiff in error, v. The People, defendants in error.
    Under chapter 110 of the Session Laws of 1853, the magistrates and courts of Kings county are required to send to the penitentiary instead of the county jail, all persons convicted before them, who shall be sentenced to imprisonment for thirty days or more.
    Whether a prisoner, in confinement, in pursuance of a final judgment, can be admitted to bail, after an allowance of a writ of error, when there is no direction therein that the same shall operate as a stay of proceedings, doubted by Lon, J;
    Peter J. Dempsey pleaded guilty, in the Court of Sessions' of Kings county, to an indictment for assault and battery, and was thereupon séntenced to imprisonment for six months in the penitentiary of said county.
    A writ of error was sued out, and the case removed to the Supreme Court, on the claim that there was no authority to imprison in the penitentiary,' under ch. 110 of the Laws of 1853.
    An application was made to Mr. Justice Lott to let the prisoner to bail, pending the writ of error. The application was denied, and the following opinion given.
   Lott, J.

It is immaterial, in the view taken by me of the 'question presented as the ground of error in the judgment of the Court of Sessions, whether the liability of the plaintiff in error to confinement in the penitentiary depended on the term of imprisonment prescribed by law, on his conviction of the offense with which he was charged, or the time, fixed by his sentence. He was, in fact, sentenced for six months, but the court was authorized to imprison for a year. He was in either case, therefore, in the language of the act relating to the penitentiary (ch. 110 of the Laws of 1853), liable to imprisonment for a period of not less than thirty days, and being so liable it was made the duty of the court, by that act, to sentence him, as they did, to confinement in the penitentiary instead of the county jail. That judgment is, as I understand, in conformity with the construction given to that act since it took effect, and in accordance with the opinion expressed in the case of The, People v. Gavanagh (1 Park. Cv. R, 592), and after a careful examination, I do not find sufficient to justify the conclusion that there is any reasonable doubt of the legality of the sentence. Entertaining this view of the case, I cannot admit the prisoner to bail. -

James Troy, for the plaintiff in error.

The act of the legislature of April 5,1853, does not authorize the commitment to the penitentiary of any persons except those “ who, on conviction, are liable to imprisonment for a period of not less than thirty days.”

This refers not to the sentence, but to the statutory limit of punishment of an offense. %

The term of imprisonment for an assault and battery is limited by- statute. It cannot exceed one year; it may be less than thirty days. (2 R. S., 697.) For that offense a person is liable to imprisonment for less than thirty days, and that offense is. not, therefore, one for which a person convicted may be sent to the penitentiary.

John Winslow (District Attorney), for the defendants in error.

1. The liability meant by statute is the liability on the sentence, and the prisoner being sentenced for more than thirty days, to wit., for six months, was properly sent to the penitentiary. (The People v. Cavanagh, 1 Park. Cr. R, 588; 2 Id., 650.)

It may be proper to add that, if I entertained any doubt on the question presented, it is at least questionable whether a prisoner in confinement, in pursuance of a final judgment and sentence, can be admitted to bail, after an allowance of a writ of error (which is in this case a writ of right, and issues of course without reference to the merits), when there is no direction' therein that the same shall operate, as a stay of proceedings.

The cause then came on to argument on the return to the writ of error.

2. The construction of the statute sought by the plaintiff in error, would clearly nullify its obvious purpose and make it an absurdity.

{a.) The object of the statute clearly is to have all persons sentenced for a term of thirty days and upwards (except such as are sentenced to State prison), imprisoned in the penitentiary, and not in the county jail; or, to use the language of the statute, 11 instead of the county jail.”

{b.) The absurdity of the construction sought by the plaintiff in error is quite obvious. For example: “The statute punishes sodomy by imprisonment in the State prison for a term not exceeding ten years. It is left to the court to say how much less it shall be. It may be less than thirty days, and, therefore, the plaintiff would say, adhering to his construction, that all persons convicted of said felony, being liable on conviction to imprisonment for a term less than thirty days, must be sent to the county jail. This would be true of many other felonies. As a practical result, therefore, the construction of the statute claimed by the plaintiff would throw wide open the doors of the State -prison and the penitentiary.

(c.) It is said, in Behan v. The People (17 N. Y. R., 521), that “ courts, in construing a statute, will look at the general scope and purpose of the act, and search there for an expression of the legislative intention.”

The judgment of the Court of Sessions was affirmed.


author: By the Court, Sutherland, J.

text:
    Supreme Court. New York General Term,
    December, 1860.

      Gierke, Sutherland and Barnard, Justices.
    Honeywell Vincent, plaintiff in error, v. The People, defendants in error.
    Eorm of an indictment for forgery in the first degree, charged to have been committed after a previous conviction for a felony.
    In an indictment for forging a certificate of acknowledgment of a mortgage, it is necessary to allege that the officer, whose act it purports to be, was duly authorized to make such certificate; and the omission to make such allegation is not supplied by setting forth the certificate m Time verba, if the venue or name of the county is omitted in the certificate, it appearing by the signature that the certificate purported to have been made by a commissioner of deeds.
    When the authority of the officer depends on locality, it must appear that he acted within the territorial limit prescribed by the statute; and if this does not appear upon the face of the certificate, its being set forth in the indictment will not supply the omission of a general allegation of authority.
    This case came up on writ of error to the New York General Sessions. By the return, it appeared that in June, 1860, the following indictment was found against the plaintiff in error in that court:

      City and County of New York, ss:

    The jurors of the People of the State of New York, in and for the body of the city and county of New York, upon their oath present, that heretofore, to wit, at a Court of General Sessions of the Peace, holden in the city of New York, in and for the city and county of New York, on the 10th day of July, in the year of our Lord one thousand eight hundred and forty-eight, before the Honorable John B. Scott, recorder of the city of New York, and Thomas K. Downing and Dennis Carolin, Esqrs., aldermen of the said city, justices of the said court, assigned to keep the peace of the said city and county of New York, Honeywell Vincent, otherwise called Henry Vincent, was, in due form of law, tried and convicted of felony, to wit, of obtaining goods by false pretenses, upon a certain indictment then and there depending against the said Honeywell Vincent, otherwise called Henry Vincent, and Alexander Gr. Coxe, and Ephraim Maynard, for that the said Honeywell Vincent, otherwise called Henry Vincent, Alexander Gr. Coxe, and Ephraim Maynard, being persons of evil disposition, ill name and fame, and of dishonest conversation, and devising and intending, by unlawful ways and means, to obtain and get into their hands and possession the moneys, valuable things and effects of the honest and good people of the State of Hew York, to maintain their idle and profligate course of life, on the seventh day of March, in the year of our Lord one thousand eight hundred and forty-seven, at the second ward of the city of Hew York, in the "county aforesaid, with intent feloniously to cheat and defraud Andrew J. Berrian and Archibald J. Brown, did then and there, feloniously, unlawfully, knowingly, and designedly, falsely pretend and represent to the said Andrew J. Berrian and Archibald J. Brown that a certain bond and mortgage, which they, the said Alexander Gr. Coxe, Honeywell Vincent, otherwise called Henry Vincent, and Ephraim Maynard, then and there exhibited and delivered to the said Andrew J. Berrian and Archibald J. Brown, were true instruments, made and executed by Ephraim Maynard to H. Vincent, for a full and valuable consideration ; that said mortgage was upon eight lots of ground, situate and lying upon Louisa street, and two lots of ground upon Columbia street, in the city of Htica, located upon points designated upon a certain map which the said Coxe, Vincent, and Maynard, then and there exhibited to the said Andrew J. Berrian and Archibald J. Brown, and that said property was worth twelve hundred dollars over and above the amount of uhe said mortgage, and that said property was owned by the said Ephraim Maynard, and that the said Alexander Gh Coxe was the agent of the said Vincent; and the said Andrew J. Berrian and Archibald J. Brown, then and there, believing the said false pretenses and representations so made, as aforesaid, by the said Alexander Gr. Coxe, Honeywell Vincent, otherwise called Henry Vincent, and Ephraim Maynard, and being deceived thereby, were induced, by reason of the false pretenses and representations so made, as aforesaid, to deliver, and did then and there deliver to the said Ooxe, Vincent, and Maynard, three hundred gold pens, and three hundred pencils, of the value of seven hundred and fifty dollar’s, of the proper moneys, valuable things, goods, chattels, personal property, and effects of the said Andrew J. Berrian and Archibald J. Brown, and the said Ooxe, Vincent, and Maynard did then and there designedly receive and obtain the said goods and merchandise, of the said Andrew J. Berrian and Archibald J. Brown, of the proper moneys, valuable things, goods, chattels, personal property, and the effects of the said' Berrian and Brown, by means of the false pretenses, and representations aforesaid, and with intent, feloniously, to cheat and defraud the said Berrian and Brown of the said goods and merchandise. Whereas, in truth, and in fact, the said bond and mortgage were utterly false and fictitious instruments; that the said Maynard did not own any such property in the city of Utica, and the said bond and mortgage were not made • and executed for a full and valuable consideration, or any consideration whatever; and, whereas, in truth, and in fact, the said Alexander Gr. Ooxe was not the agent of said Vincent ; and, whereas, the said bond and mortgage were, and are, in all respects, utterly worthless, false, and fictitious; and, whereas, in fact, and in truth, the pretenses and representations so made, as aforesaid, by the said Alexander Gr. Ooxe, Honeywell Vincent, otherwise called Henry Vincent, and Ephraim. Maynard, to the said Andrew J. Berrian and Archibald J. Brown, was, and were, in all respects, utterly false and untrue, to wit: on the day and year last aforesaid, at the ward, city, and county aforesaid; and, whereas, in truth, and in fact, the said Ooxe, Vincent, and Maynard, well knew the said pretenses and representations, so by them made, as aforesaid, to the said Berrian and Brown, to be utterly false and untrue, at the time of making the same, against the form of the statute in such case made and provided, and against the peace of the. People of the State of Hew York and their dignity.
    And, therefore, it was considered by the said court there, that the said Honeywell Vincent, otherwise called Henry Vincent, should be imprisoned in the State prison, at Sing Sing, for the term of two years, as by the record thereof doth more fully appear.;■ .
    And the jurors aforesaid, now here sworn, upon their oath, aforesaid, do farther present, that the said Honeywell Vincent, otherwise called Henry Vincent, having been so convicted of felony, to wit, of obtaining goods by means of false pretenses, and having been duly discharged and remitted of such judgment and conviction, afterward, to wit, on the first day of May, in" the year of our Lord one thousand eight hundred and sixty, at the first ward of the city of Hew York, in the county of Hew York, aforesaid, with force and arms, feloniouslydid forge and counterfeit, and falsely alter, and cause and procure to be" forged and counterfeited, and falsely altered, and willingly act and assist in the forging and counterfeiting and falsely altering, a certain instrument and writing, commonly called a certificate, the same being a certificate of the acknowledgment, by one Sarah J. Lyon, of a certain mortgage, the said mortgage being an instrument which, by law, might be recorded, which said false, forged, and counterfeited certificate is in the words and figures following, that is to say:
    “ State of New York, —•— County, ss:

    On the first day of May, in the year one thousand eight hundred and sixty, before me, the subscriber, appeared Sarah J. Lyon, to me personally known to be the same person described in, and who executed the within instrument, and acknowledged that she executed the same.
    ABRM. W. KENNEDY, Commissioner of Deeds."

      Which said false, forged, and counterfeited certificate, was indorsed on the said mortgage, which is in the words and figures following, that is to say:
    This indenture, made the first day of May, in the year one thousand eight hundred and sixty, between Sarah J. Lyon, of the city, county, and State óf Hew York, of the first part-, and H. Vincent, of said city, party of the second part, witnesseth: that the said’ party of the first part, in consideration of the sum of one thousand dollars, to her duly paid, hath sold, and by these presents doth grant and convey to the said party of the second part, all my right, title, and interest in and to a certain parcel or piece of land, lying, being, and situate in the city of Hew York, and located on the westerly side of the Seventh avenue, in the Twelfth ward of said city ; the said property consisting of two lots of ground, measuring twenty-five feet front and rear, by one hundred feet each in depth, known and distinguished on a certain map, entitled a “ map of Harlem Heights,” and now on file in the hall of records, in said city, aforesaid, with the appurtenances, and all. the estate, title, and interest of the said party of the first part therein. This grant is intended as a.security for the payment of one thousand dollars, which payment, if duly made, will render this conveyance void.
    In witness whereof, the said party of the first part hath' hereunto set her hand and seal, the day and year jlrst above written.
    SARAH J. LYON. [l. s.]
    Sealed and delivered in) the presence of )

    Abr’m W. Kennedy.

      With intent to injure and defraud one Edward E. Eobinson, • and divers other persons, to the jurors aforesaid unknown, against the form of the statute in such case made and provided, and against the peace of the People of the State of Hew York and their dignity.
    NT. J. WATERBURY, District Attorney.

    On the trial the prisoner was found guilty of forgery in the first degree, and was sentenced accordingly.

      Sidney H. Stuart, for the plaintiff in error.
    This indictment is bad, and the verdict of the jury and judgment of the court ought to be reversed, because,

      First. The indictment fails .to describe the offense charged in the language of the statute, or to state all the circumstances constituting the statutory definition of the crime alleged. The statute describes the offense of which the prisoner was convicted, in the following words: “ Whoever shall forge,” &c., “ any certificate or indorsement of the acknowledgment, by any person, of any deed or other instrument, which by law may be recorded, made, or purporting to have been made, by any officer duly authorized to make such certificate or indorsement, shall be guilty of,” &c. (3 R. S., 5th ed., 949.)
    The indictment describes the offense of which the prisoner was convicted, in the following words: “ That the defendant feloniously did forge, &c., a certain instrument and writing, commonly called a certificate, the same being a certificate of the acknowledgment, by one Sarah J. Lyon, of a certain mortgage, the said mortgage being an instrument which, by law, might be recorded; which said false, forged and counterfeit certificate is in the words following,” &c.
    The fault of the indictment in this particular is the omission of the statutory words, “ purporting to have been made by an •officer duly authorized to make such certificate.”
    The omitted words are part of the statutory description of the offense, and their absence is fatal to the validity of the indictment. “A verdict does nothing more than verify the fact charged in the indictment.” (State v. Godfrey, 24 Maine R, 232.)
    “An indictment founded upon a statute must charge all the facts and circumstances which constitute the statute offense, so as-to bring the accused perfectly within the statute.” (The People v. Allen, 5 Denio R., 76.)
    “Indictments upon statutes, particularly those of a.highly penal character, must state all the circumstances which constitute the definition o£ the offense in the statute, so as to bring the defendant judicially within it. It must be clear and certain to every intent and purpose, and must follow the language employed in the statute in the description of the offense.” (Ike v. Stale, 23 Miss. R., 525.)
    All statutory indictments for felonies must state the offense in the language (or its equivalent) of the statute, creating or declaring against the crime. (State v. Noel, 9 Blackf. R., 548;
      Howell v. Commonwealth, 5 Grat. R., 664; State v. Brougham, Blackf. R., 307; State v. O'Brien, 1 Bailey, 144; Hamilton v. Commonwealth, 3 Penn. R., 142; State v. Foster, 3 Mason, 442; State v. Fleetwood, 14 Maine R., 448; Commonwealth v. Tucker, 20 Pick. R., 356; Hampton's Case, 3 Grat. R.)

      Second. The indictment does not aver that the mortgage, upon which the certificate of acknowledgment was indorsed, was ever delivered, or in any other manner executed in fact. Without execution by delivery, the mortgage could no more have a legal existence (being a conveyance of real property), than could a deed under like circumstances; and any certificate of the character of the one in this case, indorsed upon an unexecuted mortgage, can have no lawful operation or legal effect to the end intended, and is, therefore, without that legal existence necessary to make it the subject of a forgery.

      Third. The indictment, while charging the certificate to be a forged certificate of acknowledgment, &c., presents it as a true certificate of acknowledgment, &c.
    These are the words of the charging part of the indictment: “ That the defendant, with force and arms, feloniously did forge, &c., a certain instrument in writing, commonly called a certificate; the same (not purporting to be, but) being a certificate of the acknowledgment, by one Sarah J. Lyon, of a certain mortgage, the said • mortgage being an instrument which, bylaw, might be recorded,” &c.
    The charging allegation is, that the prisoner forged the “certificate ;” but the “ descriptive averment ” — that part of the indictment which states the facts that constitute the character of the instrument, and which must control — presents it as the true certificate of the acknowledgment, by Sarah J. Lyon, of the execution of a certain mortgagé, &c. There is in this, at least, an incongruity fatal to the indictment.

      Fifth. The indictment does not charge the defendant with the statutory offense of the forgery of a certificate, but with the forgery of “ a certain instrument and writing, commonly called a certificate, the same being a certificate of the acknowledgment,” &c.

      The case of Rex v. Craven (2 East P. C., 601, 602), (with several analogous decisions, both in this country and England, confirmatory of the law pronounced in that case), shows, in another aspect, that the description of the instrument in this case does not fulfill the requirements of the statute. Craven was indicted under the English statute, which declares the stealing of any “bank note” to be a larceny, and the indictment charged that he stole- a certain “ note", commonly called a bank note.” The twelve judges on the case reserved held this to be an imperfect description, and said that the words, “commonly called a bank note,” did not remedy the original insufficient description of the instrument.
    So here the words, “ commonly called a certificate of acknowledgment,” &c., cannot remedy an original imperfect description. See same authorities as those to first point.

      Sixth. The face of the certificate shows no venue or place of its execution, or in and for what county or city the commissioner was appointed, or had authority to take acknowledgments of the execution of deeds and mortgages; nor are these defects, or any of them, cured by any averments of such extrinsic facts as became necessary to be proved to supply the imperfections of the certificate.
    The statute provides that “ no commissioner of deeds shall take any acknowledgment of the execution of any conveyance out of the city or county in and for which he was appointed.” (3 R. S, 5th ed, 46.)
    “ An affidavit without a venue is a nullity, although sworn before a commissioner of deeds whose residence is mentioned in the jurat. It must indicate the county in which it was taken, or it will be void.” (Cook v. Stoats, 18 Barb. R., 407.)
    “ The venue is an essential part of an affidavit.” (1 Barb. Ch., p. 601.)
    “ An affidavit without a venue, taken before a commissioner of deeds whose residence is not mentioned, is a nullity.” (6 How. Pr. R., 394.)
    “ An affidavit of one county as a venue,, sworn before an officer in another county, having authority to take affidavits in his county, cannot be read.” (2 How. Pr. T., 86, 127, 181.)
    Ls there any reason why the rule, applicable to affidavits before-commissioners, should not obtain in relation to acknowledgments before commissioners? Is not the one as important in the conveying of rights, as the other is in obtaining them ? Why should not the caution and certainty of both be equal ? Perjury could not be predicated of the one; why should forgery of the other?
    It is confidently submitted, that this certificate would not be valid if true.
    “ An instrument, to be the subject of an indictment for forgery, must be valid, if genuine, for the purpose for which it is made*” (People v. Harrison, 8 Barb. R., 568, with authorities there cited.)

      Seventh. The indictment does not allege that the defendant forged the “ certificate” with an intent to cheat and defraud.
    The act upon which the intent to defraud is predicated, is the indorsing of the certificate upon the mortgage, after the forgery of it was complete. .
    From a careful reading of the indictment, it is clear that the intent to defraud is not made to relate to the act of forging the certificate, but to the act of indorsing it upon the mortgage, after it was fabricated.
    The indictment treats the certificate as an independent and substantive instrument, entirely distinct from the mortgage, until connected with it by an averment that it was indorsed thereon; “ which certificate (then already forged) was indorsed upon the said mortgage, with intent,” &c. When or by whom the indorsement was made, is not pretended.

      Eighth, The indictment charges that this forgery was committed after the defendant had been convicted and remitted of a previous felony. The verdict is: “Guilty of forgery in the first degree.”
    This -verdict is not responsive to the charge in the indictment, which is forgery in the first degree as a second offense.
    A verdict must respond to the charge supposed in the indictment, or to one or more of the counts of the indictment, otherwise.it will be set aside.

      John H Anthon, for the defendants in error.
    There is no bill of exceptions in this case, nor any complete record. All questions raised by the prisoner must therefore appear on the face of the indictment or the entry of judgment, which only are before the court.
    I. The question therefore is, whether, upon any supposable proof, testimony or state of facts, the judgment pronounced could have been given upon the indictment returned; the presumption after verdict being that the testimony supported it, and proved everything that could be proved under the indictment. (1 Greenl. Ev., § 19; Grah. Pr., art, “ Motion in arr.;” Thompson v. People, 3 Park. Cr. R., 208; Waller v. State, 4 Ark. R., 37; Sweetapple v. Jesse, 5 Barn. & Aid., 27; Barb. Cr. Law, 372; People v. Holmes, MS., June Term, 1861; Reg. v. Waters, 2 Bent. & Heard, 69.)
    II. The omission of the words, “ purporting to have been made by an officer duly authorized to rpake such certificate,” is wholly immaterial, and the mode of stating the forgery, aa a “certificate” instead of “a false certificate,” or a “paper purporting to be a certificate," is correct. (People v. Rynders, 12 Wend. R., 427; Thompson v. People, 3 Park. Cr. R., 208; State v. Fenley, 18 Miss. R., 445; State v. Gardner, 1 Iredell, 27; People v. Badgley, 16 Wend. R., 53; People v. Stearns, 21 Id., 409; People v. Warner, 4 Barb. R., 314; Charles v. People, 1 Comst. R., 180; Whart. Prec. of Ind., 264; Lyons' Case, 2 Leach, 597, 608.) In all these cases, except the last, the indictments were identical in these respects with that under consideration, and the doctrine held is, that “ it is sufficient to allege that the defendant forged an instrument setting it out in hcec verba, with intent to defraud.”
    III. The same cases are conclusive upon the question raised by the fifth point for the defendant, “ a certain instrument and writing commonly called a certificate, the same being a certificate, etc.,” followed by the instrument in hcec'verba, is a good description.
    In Craven’s case, cited for the defense:

      a. The note was not set out in Zicec verba.

      b. . The omission was of the word “promissory ” or “bank,” which were needed to show that the paper was the subject of larceny.

      c. The words, “ the same being,” were omitted.
    IY. Ho averment of the delivery of the mortgage was necessary, especially upon an indictment for the forgery and not the uttering. The delivery was merely evidence of fraudulent intent, and, as such, need not be alleged. It is sufficient if the court sée that the instrument might be so used as to defraud. (People v. Stearns, 21 Wendt R., 409.)
    Y. In general, the rule is, that no more certainty is essential in an indictment, than will apprise' the defendant of the precise charge against him. (People v. Powers, 3 Seld. R., 50; People v. Tredway, 3 Barb. R., 470; Biggs v. People, 8 Id., 547; 5 Wend. R., 10 ; People v. Taylor, 3 Denio R., 91; Buller v. People, 4 Id., 68.)
    YI. If the certificate, in the form in which it appears in the indictment with the omission in the venue, would be void, then the conviction must be sustained because:
    • a. The court must intend that the indictment and "verdict were supported by appropriate proof (see cases under point I), and that the forgery charged consisted in the very act of making a certificate, originally complete, assume this appearance, that is, by a material erasure; and,

      b. Such charge would be well stated by an indorsement, alleging the forgery of the entire instrument as it appeared after the erasure. (Arch. Cr. Pl., 428; Rex v. Teague, 2 East R., 978, 979 ; Rex v. Atkinson, 3 Car. & Payne, 699 ; Whar. Cr. Pl, 428 ; 1 Iredell, 24; lb., 13; Ib., 491; Case of J.B. Holmes, cited above; State v. Flye, 26 Maine R., 312.)
    YII. If the omission in the venue of the certificate originally existed, it could have been supplied by parol proof that the acknowledgment was in fact taken in the place for which the commissioner was appointed, and the court must intend that it was so supplied, and that the forgery charged consisted of some other material erasure or alteration. (People v. Fredway, 3 Barb. R., 470; Jackson v. Gumaer, 2 Cow. R., 552.) In the last case the name of the State was omitted. (R. v. Birkett, Buss, and Ry., 86.)
    Yin. If the certificate as it appears, in the indictment is a valid certificate, then the conviction must of course be sustained. » .
    IX. The statute does not require any place of execution to be noted on the certificate. The only law on the subject prohibits a commissioner from actually taking an acknowledgment out of the place of his appointment. It is directory merely, and does not make the instrument void, and instruments not complying with directory statutes, are subjects of forgery. (Lynch v. Livingston, 2 Seld. R., 422 ; Bishop Cr. Law, § 443; Barb. Cr. Law, § 117; Roscoe's Cr. Ev., § 291; R. v. Lyon, Russ, and Ryan, 255; 2 Buss, on Cr., 350, and cases cited; People v. Rathbone, 21 Wend. R., 509.)
    X. The intent to defraud is well stated, and must, by any reasonable construction of the language, be referred to the forgery as well as to the contemporaneous and identical act of indorsing the same forged certificate.
    XI. On indictment for forgery in the first degree as a second offense, the jury can find the prisoner guilty of forgery in the first degree, and negative the previous conviction, and so they did in this case. The form of their verdict does not appear and is not called for, but the sentence is for forgery in the first degree. (Palmer v. People, 5 Hill R., 427.)
   By the Court, Sutherland, J.

There is no bill of exceptions in this case, nor any complete record.

The only questions in this case relate to the sufficiency of the indictment, and to the form of the verdict and consequent judgment.

The indictment, if it charges any crime, charges forgery in the first degree, after conviction of a previous felony. The verdict and sentence were for forgery in the first degree, without noticing the alleged conviction of a previous felony. As we have nothing but the indictment and entry of judgment before us, we cannot say whether there was on the trial any proof of a previous conviction; but whether there was, or was not, the form of the verdict was well enough. Certainly the prisoner cannot complain that the jury did not take into consideration his previous conviction, if proved;

The only question in the case, then, is, whether the indictment charges the offense of forgery in the first degree.

The allegation in the indictment is, that the prisoner feloniously did forge, &c., a certain instrument in writing, commonly called a certificate, the same being a certificate of the acknowledgment, by one Sarah J. Lyon, of a certain mortgage, the said mortgage being an instrument which, by law, might be recorded,” setting forth the certificate in hcee verba.

The certificate, as thus set forth, purports t’o have been made by Abram W. Kennedy, commissioner of deeds, but it has no venue, that is, the acknowledgment which it certifies does not by it purport to have been taken in any particular county or city of the State, and there is nothing on its face to show of what county or city Kennedy was a commissioner. The certificate commences,

State of New York, County, ss: ”

The name of the county being omitted, otherwise it is in the usual form.

The statute (3 B. S., 5th eel, 949), declares the forging, &c., of “ any certificate or indorsement of the acknowledgment, by any person, of any deed or other instrument which, by law, may be recorded, made, or purporting to have been made, by any officer duly authorized to make such certificate or indorsement,” forgery in the first degree.

The indictment in this casé does not allege that the certificate was made, or (in words) that it purports to have been made by an officer authorized to take the acknowledgment or to make the certificate, but as the certificate is set forth in hcec verba, the indictment does, in effect, and sufficiently allege, that it purports, whatever the certificate as set forth in the indictment purports. (People v. Mynders, 12 Wend. R., 427; People v. Stearns, 21 Wend. R., 409.)

The question, then, is whether the certificate, as thus set forth, does purport to have been made by an officer duly authorized to malee it.

It purports to have been made by Abram W. Kennedy, as a commissioner of deeds, and a commissioner of deeds is an officer authorized to take and to certify the acknowledgment. of deeds, &c.; but they are local officers, appointed for particular counties and cities, and the statute declares that a commissioner of deeds shall, not take such acknowledgments out of the city or county for which he was appointed. (3 R. S., 46, § 4, 5th ed.)

The question is not whether the certificate, as set forth in the indictment, purports to have been made by a commissioner of deeds, but whether it purports to have been made by a commissioner of deeds authorized to make it, or to take the acknowledgment which it certifies. It certainly does not, for it does not purport to have been made, or that the acknowledgment was taken, in any particular county or city of the State.

The authority or jurisdiction of the officer depending on locality, it would seem to follow that the certificate, as set forth, cannot purport that Kennedy was authorized to make it, or take the acknowledgment in the absence of any venue, or of anything on its face to indicate in what county or city it was made, or the acknowledgment taken.

It hap been held that an affidavit without a venue is a nullity. (Cook v. Staats, 18 Barb. R., 407; Lane & Laing v. Morse & Studley, 6 How. Pr. R., 395.)

No crime, then, is charged in the indictment, for there is in it no allegation, formally or otherwise, as to one of the circumstances constituting the statutory definition of the crime, to wit, the authority of the officer. (People v. Allen, 5 Denio R., 76.) We cannot suppose that any possible evidence on the trial could have remedied this defect in the indictment, for no possible evidence could make the certificate, as set forth in the indictment, purport more or differently from what it does.

We are bound to presume that the evidence verified the indictment, but we have no right to presume that it verified facts or circumstances entering into the definition of the crime not alleged in the indictment.

My conclusion is, that the judgment of the General Sessions should be reversed.

Judgment reversed.


author: By the Court, Knox, J.

text:
    Supreme Court. Monroe General Term,
    March, 1860.
    Smith, Johnson and Knox, Justices.
    James McDermott, plaintiff in error, v. The People, defendants in error.
    On the trial of an indictment, unider 2 E. S., 698, § 3, for an attempt to commit arson, it appeared that the prisoner, having prepared camphene and other combustibles, and placed them in his room, solicited McD. to use them in burning a barn of S. D., and promised to give him a deed of land if he would do so, and it was held that the proof was sufficient to warrant the conviction.
    Eorm of an indictment for an attempt to commit arson in the third degree.
    This case came before the court on a writ of error to the Court of Sessions of Monroe county.
    The first count of the indictment against the plaintiff in error, was as follows:

      State of New York, Monroe County, ss.
    The jurors of the People of the State of Mew York, in and for the body of the county of Monroe, aforesaid, upon their oaths aforesaid, do present: That James McDermott, on the first day of February, 1859, at the town of Greece, in the said county, did attempt, unlawfully and feloniously to set fire to, and burn a certain barn.of Samuel Davison, there situate, with intent to injure the said Samuel Davison, 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.
    The second count also charged an attempt to burn the barn, and the third and fourth counts were for inciting Henry McDonnell to burn it.
    The prisoner pleaded not guilty, and, after a trial, he was found guilty,^and sentenced to three years’ imprisonment in the State prison.
    Thereupon, a writ of error was' sued out, and the record removed into this court.
    The facts sufficiently appear in the opinion of the court.
    The cause was argued by —

      T. Hastings, for the plaintiff in error.

      Calvin Huson, for the People.
   By the Court, Knox, J.

The indictment upon which the defendant was convicted at the Monroe Sessions, in 1859, and sentenced to be imprisoned in the State prison at Auburn for three years, contains four counts. The first and second allege that the defendant “ did attempt, unlawfully and feloniously, to set fire to and burn a certain barn," &c.; and the third and fourth charge that “the defendant did, unlawfully, falsely and maliciously, solicit and incite one Henry McDonnell, unlawfully, &c., to set fire to the barn," &c.

On the trial, it was proved that the barn mentioned was on a farm owned and occupied by one Davison, with whom the prisoner had had much difficulty; that a barn had previously been burned on the same premises, and that the defendant went to McDonnell and said to him that “the place of Davison gave him a great deal of trouble, and he wished to get some one to burn it up ; he said if I would burn the place he would give mé the deeds and assign over all his right and title to me of the place; when he spoke of burning, he used the word 1 building ’ or ‘ premises; ’ he said he had camphene and other combustibles in his room; he said if I would go out there he would furnish a horse and buggy to bring me back; he said it would be hitched or standing at a gate about the premises, on the Paddy Hill road,” etc.

The principal question is, did the evidence support either count in the indictment ? or, to state it more precisely, can a person be convicted properly, under this evidence, of the offense mentioned in the following section of the statute? “ Every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act toward the commission of such offense, but shall fail in the perpetration thereof, and shall be prevented or intercepted in executing the same, shall be, upon conviction, punished,” &c. (3 R. S., 5th ed., p. 583, sec. 3; 2 R. S, 1st ed., 698.)

Were it not for the elaborate and learned brief which the defendant’s counsel has furnished, I should not hesitate a moment to say that the conviction was right,' and sustained by the case of The People v. Bush, 4 Hill R., 133. -But, as the soundness of the opinion in that case is questioned, it may not be unprofitable to examine the question here, in the light of reason, as well as authority.

The two important and essential facts to be established to convict a person of an offense, are, first, an intent to commit the offense; and, second, some overt act consequent upon that intent toward its commission. So long as the act rests in bare intention, it is not punishable; cogitationis pcenam nemo patitur. It is only when the thought manifests itself by an outward act in or toward the commission of an offense, that the law intervenes to punish. As we cannot look into the mind to see ■the intent, it must, of necessity, be inferred from the nature of the act done, and if that be unlawful, a wicked intent will be presumed. These are fundamental legal principles. Now, applied to the facts of this case, what do we find? We find that the defendant intended to commit the crime of arson; indeed, he had committed the offense “ already in his heart.” What were the overt acts toward the commission ? He had prepared camphene and other combustibles, and had them in his room, and then he went a step further and solicted McDonnell to use those combustibles to burn the building, promising him, if he would do so, to give him the deeds of the place, and assign to him his right in the same.” We have, then, the fixed design of the defendant to burn this barn, and overt acts toward the commission of the offense, and a failure in the perpetration of it. The offense, then, is fully made out, for the intent to do the wrongful act, coupled with the overt acts toward its commission, constitutes the «tempi.spoken of by the statute.

There are one or two other questions raised by the defendant, but I consider them, and it is evident that his counsel does, of no moment. The conviction was right, and should be affirmed.


author: By the Court, Allen, J.

text:
    Supreme Court. New York General Term,
    February, 1861.

      Gierke, Sutherland and Allen, Justices.
    William Mulligan, plaintiff in error, v. The People, defendants in error.
    On the trial of a prisoner for attempting to discharge a pistol with the intent to kill, &c., under 2 JR. S., 665, § 36, the prisoner’s counsel requested the judge to charge “ that the pointing of an uncocked Colt’s revolver at a person is not an attempt to discharge the weapon,” and the judge refused so to charge, and charged that it was a question of fact for the jury to decide, and not a question'of law for the decision of the court; Held, that the ruling of the judge was erroneous, and the prisoner, having been convicted, the judgment was reversed on writ 6f error, and a new trial ordered.
    A conviction for an attempt to discharge a pistol, under the statute referred to, cannot be had, where the individual indicted proceeded no farther toward an actual discharge or shooting than to raise and point the pistol, uncocked, at the party threatened.
    A threat made by the prisoner at the time would constitute no part of the attempt to discharge the pistol; it would only be evidence of the intention of the prisoner.

      Error to the Oyer and Terminer of the city and county of New York, where the plaintiff in error was tried and convicted, -before Mr. Justice Gould, of. having attempted to discharge a 'loaded pistol at one Oliver, with intent to kill him, and was sentenced to four years’ imprisonment in.the State prison.
    At the close of the evidence, the judge was requested by the prisoner’s counsel, to charge that the pointing of an uncocked Colt’s revolver at a person, is hot an attempt to discharge the weapon. The judge refused so to charge, holding that it- was a matter of fact to be left to the jury, and not a question of law to be decided by the court, to which the prisoner’s counsel excepted.
    Other questions were raised on the trial, but not having been considered by the court, on review, it is unnecessary to state them.

      James T. Brady, for the plaintiff in error.

      Nelson J. Waterbary (District Attorney), for the People.
   By the Court, Allen, J.

The plaintiff in error was convicted' of attempting to discharge a loaded pistol at one Oliver, with intent to kill him, and sentenced to the State prison for four years, upon which conviction, error was brought to this court.

Several questions arise upon exception to the rulings and decisions of the learned judge, in the progress of the trial, which it will not be necessary to consider, if my brethren concur with,me upon the main question presented by the record.

The prisoner was in a common gambling house, of which Morrissey, one Dancy, and others, were proprietors, and while conversing peaceably with Dancy, was ordered out of the house by Morrissey. Not leaving in pursuance of the request, Morrissey procured the attendance of Oliver, who was one of the police officers of the city of New York, and requested him to remove the prisoner from the premises. The prisoner refused to go, or did not leave, at the request of the officer, and the latter advanced toward him with a view to eject him from the house. The evidence tended to show that the prisoner retreated as the officer advanced, and took from his pocket a loaded pistol and pointed it at the officer, using threatening language, indicating an intent to discharge it if the officer put his hand on him, or advanced toward him. The pistol was not cocked.

The prisoner was not in the act of committing an offense against the law, and was not liable to arrest by the officer, and there was no resistance to Oliver as an officer. While attempting to remove the prisoner from the house, Oliver was not in the line of his duty as a member of the police. The house was a public gaming house to which the prisoner had on other occasions resorted for play, and aside from the license implied from the character of the house, the actual permission before given to the prisoner to be and remain in the house, was an invitation and express license' to him to enter it at any and all times until the license should be revoked. He was not, therefore, a trespasser, or guilty of a breach of the peace by entering the house at the time of the alleged assault. But the license was revocable at the pleasure of the proprietors, and when revoked, he could neither lawfully enter or remain upon the premises.

Notwithstanding the illegal and offensive character of the business of Morrissey and Dancy, the premises and the possession of the proprietors were under the protection of the law, and no one had the right to intrude upon them against the wishes of the owners. There is some evidence that the officer considered the business of the house, as well as the house -itself, under the protection of the law, and the proprietors entitled to the aid of the police force to preserve order in carrying on the business rather than in suppressing it, and thus effectually preventing breaches of the peace and violation of the law. It is proper to say that in the excess of ¡zeal to protect the gambling house and its business, Oliver acted without and against the orders of his superior, Captain Dilks. Had he followed the instructions of Captain Dilks, he would have kept within the exact line of his duty.

Breaches of the peace resulted almost necessarily from the character of those who were drawn together by the attraction of the place, and the business of the house was a nursery not only for those offenses which come under the head of breaches of the peace, but for every vice and crime that infest the community, and why this police officer should have deemed it his duty so far to protect and encourage gambling, and a house for gambling, as to interfere with those who were not guilty of any offense, and were not committing a breach of the peace, merely because their presence was offensive to the keeper of the house, it is not easy to see. He was literally using his office as a “shield” for a public nuisance. The remark of the prisoner to the officer: “Don’t you see that this is a gambling house: you had better attend to this than to arrest me,” was very proper, and if the officer had heeded it, and the direction of Captain Dilks, and merely done his duty, no offense would have been committed by the prisoner, and this conviction would not have been had. Perhaps even, the Metropolitan police cannot suppress all the gaming-houses, but they are not bound to undertake their regulation and management. As there was no breach of the peace or other offense committed in the presence of the officer, he, as such, had no authority to interfere with or molest the prisoner, and the display of his “ shield” did not add to his powers. All the authority he had was as the servant of Morrissey, the proprietor of the house. As such he could have done, at his request, precisely what Morrissey himself could have done, that is, upon the refusal of the prisoner to leave the house, upon being requested so to do, he could have removed him, using just that measure of force necessary to accomplish that purpose and no more. The prisoner could not have been indicted for resisting Oliver as an officer. (Reg. v. Mabel, 9 Car. & Payne, 474.) The officer went beyond his duty as such in attempting to remove the prisoner, and was not, therefore, within the protection of the law as an officer. (Wheeler v. Whitney, Id., 262.) But as the servant of Morrissey, and acting for him, he had a right to remove the prisoner, and as no question arises upon an alleged resistance to a public officer in the discharge of his duty, so there is no question as to the degree of force used by the officer in the expulsion of the prisoner. The principal and only important question is upon the construction of the act under which the prisoner was convicted, and that question was directly presented by the request of the prisoner’s counsel to the court, to charge the jury that the pointing of an uncocked Colt’s revolver at a .person was not an attempt to discharge the weapon, which instruction was refused, and the jury were charged in substance that it was for them to say, upon the evidence, whether the act was or was not an attempt to discharge the pistol. ;

The statute under which the prisoner was convicted declares‘ that “ every person who shall be convicted of shooting at' another, or attempting to discharge any kind of fire arms, &c., with the intent to kill, maim, &c., shall be punished,” &c. (2 R. S., 665, sec. 36), and the question presented is, whether a conviction can be had for an attempt to discharge a pistol when the individual indicted has proceeded no further toward an actual discharge of shooting than to raise and point the pistol, uncocked, at the party threatened. There was no evidence of an attempt to cock the pistol or to pull the trigger, and the jury would have been warranted in finding that the prisoner merely raised the pistol and pointed it at the officer, making the qualified threat before stated. The instruction was properly asked for upon the evidence. The threat constituted no part of the attempt to discharge the pistol, and was only evidence of the intention of the prisoner. The statute quoted does not declare that every person who shall shoot or attempt to shoot at another shall be punished upon conviction as therein prescribed, but it is that every person who shall shoot, or shall attempt to discharge any fire arms, &c., shall be punished, &c., evidently indicating that the attempt, the act preparatory to the principal act prohibited, must be proximate and an attempt to do the specific thing named, to wit, discharge the gun or other fire arms. The statute is not aimed at, neither is the indictment and conviction for an assault with intent to kill. A person might make an assault with loaded pistol in his hand, and yet make no attempt to discharge it, and would not be within the provision of the statute. The English statutes, as well (1 Vict., eh. 85) as the prior statutes for which that was a substitute, are somewhat more marked and distinct in their language than our statute. They are to the effect that “ whosoever shall shoot at any person, or shall, by drawing a trigger, or in any other manner, attempt to discharge any kind of loaded arms at any person, &c., shall be liable,” &c. The principal difference between our own statute and that of 1 Viet., is that the latter punishes an “ attempt to discharge a gun, &c., by drawing a trigger, or in any other manner,” and our own punishes an attempt to discharge a gun, without referring to the means; that is, pun-, ishes the attempt to discharge a gun in any manner, which is no broader than the expression " any other manner” in the English statute. Any act toward the discharge of a loaded gun, and calculated to accomplish this purpose, would. be an attempt, under the English act, and nothing short of this would constitute the offense under the Revised Statutes. Our statute was not intended to differ from the English statutes, except by providing a mitigated punishment for the attempt, and thus distinguishing it from the consummated offense, which the English acts did not. (Rev. Notes, 3 R. S., 2d ed., 815.) That which would not be an attempt to discharge a gun in any manner other than by drawing the trigger, under the English act, would not be an attempt to discharge it under the Revised Statutes of this State. The very question made here was decided in Reg. v. Lewis (9 Car. & Payne, 523), by Arabbin, Sergeant, after consulting with Patterson, J., and the jury were instructed that to sustain an indictment for attempting to discharge a loaded blunderbuss at the prosecutor, there must be something more than the mere presenting of the blunderbuss, and that some act must be shown to have been done by the prisoner to satisfy the jury that he did in fact attempt to discharge the blunderbuss. The object of the English and our own statute is the same, to punish proximate attempts, those attempts which immediately lead to the discharge of loaded arms. (Reg. v. St. George, 9 Car. & Payne, 483.) It is not an attempt to discharge a loaded gun or pistol to put oneself in a situation in connection with the gun or pistol that it may be discharged. A mere getting it in readiness to discharge is not an attempt to discharge it. Upon the trial, an assault with intent to kill was confounded with the specific, statutory and entirely different offense charged, an attempt to discharge a loaded pistol with the like intent. The act, the attempt to commit which was made an offense, was the discharge of fire arms. No matter what other offense was committed against the laws, or the person of the officer, if this offense was not committed, the prisoner was wrongfully convicted. It is far from certain that any offense was committed by the prisoner, but of that we áre not the judges. We are only to decide upon the present conviction.

The prisoner may be, as was very strenuously urged, a very bad man, but he is nevertheless entitled to the same measure of justice, and to be judged and acquitted, or condemned, by the same rules of evidence and of law which are applied in every other case. It will not tend to make bad men better to convict and punish them without or against law. The laws and the administration of justice will not be more respected to have it understood that rules of law and constructions of statutes can be made to bend to the exigencies of particular cases, and that men can be condemned for general bad character rather than upon proof of specific offenses. In passing upon evidence, judging of' acts and intents, .and deciding, as a question of fact, upon the guilt or innocence of a party, character is an important element, and in a doubtful or balanced case may properly turn the scale, but not so in passing upon legal questions. ' They are to be decided as abstract questions, and penal statutes are to be construed by the same rules, whatever may be the character of the individual to be affected by the decision. There may have been an assault with intent to do bodily harm or to kill. (Hays v. The People, 1 Hill R., 851.) If it be conceded that the prisoner (could have been convicted of an attempt to kill, by. reason of having done an act preparatory, or taken one step toward the commission of the offense, it still does not follow that he has attempted to discharge the pistol. He might be said to have attempted murder had he solicited another person to shoot the officer, but that would not have been an attempt to discharge the pistol, the specific offense charged. (Rex v. Higgins, 2 East R., 5; People v. Bush, 4 Hill R., 133.) An attempt is an endeavor to do an act carried beyond mere preparation, but falling short of execution of the ultimate design. (Bouvier's Law Dic.) Loading a pistol would be a preparation to shoot, but not an attempt to discharge. So, to get possession of a pistol, to take it from the pocket and to point it, would be a preparation to discharge it, but not an attempt to discharge it. It may not always be easy to determine where the line is which separates a preparation to perform a given act from an attempt to perform the act. But the act which is characterized as an attempt must be proximate to the principal thing to be accomplished, a means to the' end, and the pointing of a pistol uncocked is not an attempt to discharge it, punishable under the statute. Fire arms are usually discharged by drawing a trigger, but they may be discharged in any way by which the powder can be ignited and made to explode, and the attempts to discharge may be as diversified as the means of discharge are various, but can only be by some act, which, carried out and perfected, will result in a discharge.

The conviction must be reversed, and a new trial granted.

       This case was carried on behalf of the people, by writ of error, to the Court of Appeals, where the judgment of the Supreme Court was affirmed.


author: Hoffman, J.

text:
    Superior Court. At Chambers, New York,
    October, 1861.
    Before Murray Hoffman, Justice.
    The People ex rel. Mary Allen v. Daniel H. Burtnett.
    To authorize an application for a writ of habeas corpus to an officer residing in a county adjoining that in which the prisoner is detained, under 2 M. S., 563, it must he shown.that there is no officer of competent jurisdiction within the county of the detention, or if any reside there, that lie is absent oris incapable of acting, or has refused to grant the writ. It is not sufficient for the applicant to state generally in his affidavit that he could find no such officer. Where the application was made to an officer in an adjoining county, on the sixteenth of the month, on the ground that the county judge of the county in which the prisoner was detained, was absent from the county, and the affidavit showing the fact of his absence was made on the thirteenth of the same month, it was held to be insufficient, and that an affidavit of a later date should be produced, showing that the country judge had not returned in the interim.

    Where there has been a previous decision on habeas corpus before another officer, on the same facts, the motion will be deemed res judicata; if such previous decision was wrong, the only mode of correcting it is by certiorari. Whether the enlistment of a minor, over eighteen years of age, as a private in the army of the United States, without the consent of his parents, is not valid ' under the legislative provisions of this State — Quere,

    The relator obtained a writ of habeas corpus, and asked for the discharge of William Allen, who enlisted in August, 1861, in the regiment of which respondent is lieutenant-colonel, and was subsequently mustered into the United States service. It was alleged in the petition that Allen was between the age of eighteen and twenty-one years.
    The following return was put in by the respondent:
    Daniel H. Burtnett, respondent above named, for an amended return to the writ of habeas corpus herein issued by the said Justice Hoffman, on the 16th day of September, 1861, respectfully shows: That the said William Allen, on or about the 15th day of August, 1861, duly enlisted as a private soldier in the (Governor Morgan United States light artillery regiment, of which this respondent is acting lieutenant-colonel, and was, in due form of law, mustered into the military service of the United States as such private soldier; that from the date of his enlistment as aforesaid until the present time, he has continued as such private soldier in such regiment, and has not been otherwise restrained of his liberty. That on or about the 14th day of September, 1861, a writ of habeas corpus, in due form of law, in the city of New York, was issued on behalf of the said William Allen, returnable on the 16th day of September, 1861," at 11 o’clock a. m., before Hon. George G. Barnard, one of the justices of the Supreme Court, at the chambers thereof, in the park in the city of New York. As this respondent is informed and believes, in the petition on which such writ was issued, the same facts and the same imprisonment or restraint of liberty, in substance and effect,, were stated as are stated in the petition for the writ herein allowed by said Justice Hoffman. ■ On the said 16th day of September, in obedience to such writ, and at the time and place therein stated, the body of said William Allen was produced before the said Justice Barnard, and a return to the said writ issued by him, was, in due form of law, made by the officer commanding said regiment, and having the said William Allen in his custody. Immediately thereafter, said Justice Barnard proceeded to examine into the facts contained in such return, and into the cause of confinement and restraint of the said William Allen; that upon such examination, it appeared that said William Allen was a minor, under the age of twenty-one years, and that he enlisted and was held as a private soldier, as hereinbefore set forth, without the authority or consent of his parent or guardian. The said Justice Barnard did thereupon decide and adjudge that the. said William Allen was not entitled to be discharged, and accordingly, in due form of law, dismissed such writ, and remanded the said William Allen to the custody of the officer of such regiment having him in his charge and custody.
    D. HENRY BURTNETT, Lieut.-Col.

    ' New York, October 2, 1861.
    The return was duly verified.
    No answer to the return was put in by the petitioner.

      J. O'Rourke for the petitioner,
    moved for the discharge of the minor, relying upon Dabb's Case (12 Abbott's Pr. R., 113).

      Henry L. Clinton, for the government,
    objected:
    I. That the preliminary proof necessary to give Judge Hoffman jurisdiction of the subject matter, had not been adduced before him prior to granting the writ, citing 3 R. S., 5th ed., 884, § 38, which provides that “Whenever application for any such writ, shall be made to any officer not residing within the county where the prisoner shall be detained, he' shall require proof by the oath of the party applying, or by other sufficient evidence, that there is no officer in such county authorized to grant the writ, or, if there be one, that he is absent or has refused to grant such writ, or for some cause to be specially set forth is incapable of acting; and, if. such proof be not produced, the application shall be denied.” -
    Counsel contended that the affidavit intended to supply this proof was insufficient. 1st, because it was made, not in this but in another proceeding, to wit: on the application for a habeas corpus before Justice Barnard ; 2d, that aside from this technical objection, the affidavit was insufficient, for the reason that it merely stated that at the time it was made (which was several days before the application for a habeas corpus in this proceeding) the county judge authorized to issue a habeas carpus in the county, where it was alleged the minor was restrained of his liberty, was absent, or could not be found. Non constat, he had returned, and could be found before the application for the writ in the present proceeding was made.
    II. Counsel contended that, inasmuch as the matter had been once decided by Justice Barnard, upon the same facts, and between the same parties, the decision of Justice Barnard was res adjudicata, and could only be reviewed upon certiorari, citing Mercein v. People, 25 Wend. R., 64; People v. Cassels, 5 Hill R., 164; Matter of De Costa, 1 Park. Cr. R., 129.
   Hoffman, J.

The relator has established that William Allen, her son, was a minor, over the ■ age of eighteen and under twenty-one years, and enlisted without the consent of either of his parents. It appears from the return to the writ that on the 15th of August, 1861, he enlisted as a private soldier, in the Governor Morgan United States light artillery, and was in due form of law, mustered into the service of the United States, as such private soldier. It further appears that on the 13th of September, 1861, an application for habeas corpus, was made to Mr. Justice Barnard, of the Supreme Court of this district, upon an affidavit sworn to on that day, that the deponent had made inquiries in Richmond county, for a magistrate of competent jurisdiction, to grant the writ of habeas corpus, and that he could find none, the county judge being absent from said county and gone to the western part of the State of Hew York.

The petition in that case stated that the party was deprived of his liberty, at camp Law, Richmond county. The petition in the present instance, states the same fact.

It further appears from the return, that Mr. Justice Barnard, on the 16th of September, 1861, inquired into the facts; that the fact of minority was ascertained, and of enlistment without consent. He decided that the party was not entitled to his discharge, and remanded him. to the custody of the officer, who now produces him. Several objections are made to the discharge being granted. By the statute (3 R. S., 5th ed., 883, §§ 37,38 ; 2 R. S., 563), application for the writ may be made to the Supreme Court during its sitting, or during its term or vacation, to any one of its justices, or any officer who may be authorized to perform the duties of a justice of the Supreme Court, at chambers, being or residing within the county where the prisoner is detained; or if there be no such officer within such county, or if he be absent, or for any cause be incapable of acting, or have refused to grant such writ, then to some officer having such authority, residing in any adjoining county. There must, in such case, be sufficient evidence given that there is no officer in the county of the detention authorized to grant the writ, or that he is absent, or has refused to grant it, or is incapable of acting for some cause specially set fourth.

The affidavit produced is liable to the objection that it does not explicitly state that there is no officer in the county, other than the county judge, authorized to grant the writ, only that the deponent could find none.

It is subject, also, to the difficulty that it was made on the 13th of September, and used on the 16th of that month; before Justice Barnard. On the same day, the 16th, the present application was made. The county j udge might have returned in the interim. An affidavit of a later date should have been produced.

I think these objections well taken. It is next insisted that the decision of Mr. Justice Barnard is res judicata upon the same facts in the same case, and the only mode of correcting it, if wrong, is by certiorari.

The case of Mercein v. The People, in the Court of Errors, (25 Wend. R., 64; see p. 106,) is a distinct authority to the very point, and has remained unchanged. (See 1 Parle. Cr. R., 129.)

This objection is fatal to the application. Another point has been raised as to whether the party is not so brought within the act of our own legislature as to make his enlistment valid, being over eighteen years of age, without the consent of his parents.

Upon this question the act of the militia (1 R. S., 285), the 21st section of article one, title five (Id., 296), and the act of April 15, 1861 (Sess. Laws, ch. 277), may be referred to, as also the 12th section of the act, chapter 304, of 1835. I need not pass upon this point.

The application must be denied, and the prisoner remanded to the custody of the officer making the return.


author: By the Court, Emott, J.

text:
    Supreme Court. Kings General Term,
    February, 1861.
    JEhnoit, Brown and Sorugham, Justices.
    Peter Dawson, plaintiff in error, v. The People, defendants in error.
    The proceedings of a County Court of Sessions on the trial of an indictment, will not be reviewed on writ of error by the Supreme Court, until a record of judgment shall have been made up and filed; and when a return to a writ of error Was defective in this respect, on motion of the district attorney, the writ of error was quashed.
    This was a writ of error to the Court of Sessions of the county of Kings. The return contained an extract from the minutes kept by the clerk, showing that on the 10th December, 1858, the prisoner was arraigned for an assault and battery, with an intent to kill, and pleaded not guilty. Also, another extract from the minutes of the clerk, by which it appeared that on the 15th of December, 1858, the prisoner was tried for an assault and battery, with intent to kill, and found guilty by the jury. Also, an extract stating that on the 23d December, 1858, he was sentenced to imprisonment in the State prison at Sing Sing, for nine years and six months. The last extract, as appeared by the certificate of the clerk, was a memorandum written in pencil upon a piece of paper pinned to one of the leaves of the book containing the minutes.
    Ko record of judgment was returned, and never had been made up, and the clerk certified that he had made search for the indictment in his office, and was unable to find it.

      John Winslow (District Attorney),
    moved to quash the writ of error.

      S. H. Stuart, for the plaintiff in error.
   By the Court, Emott, J.

There is nothing brought before us by this writ of error but the rough minutes of the arraignment and trial of the plaintiff in error in the. King’s County Court of Sessions, together with' a copy of a memorandum, which is not even a part of the minutes, and a certificate that the indictment cannot be found. The clerk has neglected his duty to enter the judgment in the minutes, and the then district attorney failed to make up the record. (2 R. S., 738.) I do not perceive, however, that these omissions of the public officers can be at present of any avail to the prisoner. There is no judgment of the Court of Sessions brought up by the writ of error, and, therefore, there is nothing for us to reverse. The return does not disclose the fact of any judgment or sentence. I do not regard the pencil memorandum which the clerk certifies to be attached loosely to a book of the minutes of the Court of Sessions, as any part of a record. The prisoner cannot review the proceedings upon his trial by a writ of error until a record has been made up, and the 4th section of article one, title six, chap, two, part four of the Revised Statutes points out the manner of doing so, -and fully protects his rights.

The present writ of error should be quashed.