author: Johnson, J. —

text:
    Supreme Court. Monroe General Term,
    December, 1853

      Welles, Johnson and T. R. Strong, Justices.
    Davis vs. The People.
    Where a burglary is connected with a larceny mere possession of the stolen goods, without any other evidence of guilt, is not to be regarded as prima fade or presumptive evidence of the burglary.
    But where goods have been feloniously taken by means of a burglary and they are immediately or soon thereafter found in the actual and exclusive possession of a person, who gives a false account, or refuses to give any account of the manner in which the goods came into his possession, proof of such possession and guilty conduct is presumptive evidence not only that he stole the goods, but that he made use of the means by which access to them was obtained.
    There should be some evidence of guilty conduct, besides the bare possession of the stolen property, before the presumption of burglary is superadded to that of the larcency.
    This was a writ of error, brought by the defendant to review the proceedings of the court of sessions of the county of Monroe, upon the trial of the defendant on an indictment. The first count of the indictment -was for burglary, in breaking and entering the shop of the Rochester & Syracuse Railroad Company at Rochester, by forcibly breaking an outer window of said shop, with intent to steal, and, stealing therefrom certain tools, &c, the property of Daniel Penney, and other property belonging to Thomas Drake. There was also a count for larceny, and one for receiving property knowing it to have been stolen. The defendant pleaded not guilty. From the testimony of the witnesses for the people, the following facts, among others appeared on the trial: — That on Sunday night, the 27th of March, 1853, the machine shop of the Rochester & Syracuse Railroad Company, situate on the railroad in the city of Rochester, was broken open and entered by forcibly breaking an outer window of the said shop, and that there was no other way of entering the shop, except through the broken window, 'and that the following articles which were then in the shop and the property of the persons mentioned in the indictment, were taken therefrom, viz :— One pea-jacket, two pair of callipers, one two foot rule, one pocket handkerchief, and one square; in all worth some $10. The district attorney then called, among other witnesses, George Bradshaw, who testified that he was a constable of the city of Rochester last March; that he heard of there being a trunk on a boat called the “ Wiggins,” lying in the canal near the weigh lock in said city of Rochester. That he went there on Monday or Tuesday in March, 1853, and found a trunk on the boat; that on opening the trunk he found two pairs of callipers and a square but nothing else of any value. The defendant was not there. Did not know whom the trunk belonged to. The tools were taken to the police office, and in a few days delivered to the owners, who proved them to be the same tools taken from the machine shop; and that the time they received the property was some eight or ten days after it was taken. The boat was lying in the canal about one mile or more from the railroad. The trunk had been broken open before the witness saw it. A piece of the lock was lying near the trunk. It had the appearance of being broken open with an axe or hammer and then nailed down. Eliza Wright testified as follows: — I know the defendant John Davis. He used to come on the boat and stay all night sometimes. I lived on the boat “ Wiggins,” last March. I recollect the time when Bradshaw, the constable, came on the boat for a trunk. It was on a Monday or Tuesday afternoon in March last. Three or four days before Bradshaw came, defendant told me he had a trunk that he wished to bring on the boat till he got ready to go and see his mother. The defendant brought the trunk the morning before Bradshaw found it there. It was Monday morning. I think he said he wanted to leave it, and at night he was going away with it on the cars. I did not open the trunk nor any one but Davis, to my knowledge. I think the trunk was locked when the defendant brought it there. I saw it after I got up in the morning and not before. I did not see defendant bring it there. On the Sunday night before Bradshaw came he staid on the boat. He went to bed when the rest did, and was in bed when I got up in the morning, which was between five and six o’clock. He slept in the cabin where we did. After he got up he said he had got his trunk and was going to see his mother. He went away about noon and I never saw him again till I saw him here at the trial. I never saw defendant do any thing with the trunk. There were two other boys staid aboard that Sunday night. One was called Straight and the other Hughes. Hughes did not come aboard that Sunday night till about eleven o’clock or after.

      Sabrina Wright testified, that the defendant said three or four days before the trunk was brought to the boat, that he had a trunk that he was going to bring there, and then was going to the cars to go home. That defendant said about nine o’clock in the morning that he had got his trunk there. That she saw a trunk there in the morning. This was substantially all the testimony connecting the defendant with the trunk and the stolen property. The counsel for the prisoner then moved that the prisoner be discharged, on the ground that there was no evidence tending to connect the prisoner with the trunk- or the articles found in it. That the trunk was not proved in the possession of the defendant. But the court decided that it was a question for the jury. To which decision of the court the counsel for the prisoner excepted.
    The counsel for the prisoner then moved that the defendant be discharged from the count in the indictment charging him with the crime of burglary, on the ground that if the jury should find the defendant in possession of the property stolen or a part of it, that of itself was not sufficient to convict him of the crime of burglary. But the court denied the motion, to which decision the counsel for the prisoner excepted. The court charged the jury, among other things, that in cases of larceny, after proof that property had been stolen by some one; the possession of the stolen property by a person immediately or shortly after the commission of the offence, was prima facie evidence to charge such person with the crime, and throw the burden upon him of showing how he came to the possession of the property, or rebutting in some way this prima facie evidence. That in cases of burglary, there was a still further presumption of law, that after the prosecution had proved that a burglary had been committed by the breaking into a building and stealing property, and that the stolen property was taken by the means of the burglarious breaking, then the possession of the stolen property immediately after the commission of the crime would be presumptive evidence to charge the person so in possession of the same, with the crime of burglary. In other words, that the stolen property was taken by the defendant in the manner in which it was proved to have been taken. To this charge the counsel for the prisoner excepted. The jury found the defendant guilty on the whole indictment.

      J. H. Grasswp, for the plaintiff in error.

      M. S. JVewton (Dis’t Att’y), for the people.
   By the Court,

Johnson, J. —

The rule that where goods have been stolen and are immediately or very soon thereafter found in the possession of a person, it is prima facie evidence that such person was guilty of the larceny, has never been doubted. It is said, however, that mere recent possession, independent of the conduct and declarations of the accused, or of his silence, is very imperfect evidence of guilt, as the apparent possession may have resulted from the malicious act of another (1 Starkie Ev. 513, 514.)

In the case of Commonwealth v. Willard, (1 Mass. Rep. 6,) where the indictment was for shop breaking and stealing goods, and a part of the goods stolen were found in the possession of the prisoner, Sedgwick, Justice, in his charge to the jury, stated the rule to be that the proof of the possession was presumptive evidence not only that he stole the whole of the articles taken from the shop, but also of his breaking and entering, as alleged in the indictment. But in that case, it appears that the prisoner refused to give any account of how he came by the goods. In The People v. Frazier, (2 Wheeler's Cr. Cas. 35,) which was an indictment for burglary and larceny, it was held by the Recorder that possession of the goods was presumptive evidence of the larceny, but not of the burglary. The rule is laid down in Cowen & Hill’s Notes, 432, in accordance with the case in Massachusetts, and it is there said that it is presumed the case of The People v. Frazier was decided hastily. Neither of the cases cited — and they are the only ones I have been able to find where the question here involved has been passed upon — appears to have been much considered, or is of any great weight as authority. It is certainly extending the rule of presumption to a great length, to make the clearest case of possession, even where the accused gives a false account, or refuses to give any account whatever, of the manner in which he came by the stolen property, evidence not only of the larceny but of the burglary also. The two crimes are not necessarily connected. The larceny may be committed by one, and the burglary by another. There can be no doubt that immediate possession would be competent evidence to go to the jury in connection with other circumstances, to make out the charge of burglary. But that it is of itself sufficient to raise the presumption of anything beyond the larceny can not, I think, be maintained, upon authority or sound reason. Where a person is charged with the offence of larceny alone, unless the property is clearly traced to him and his possession is shown to be exclusive as well as recent, the presumption that he took it feloniously does not arise. (Best on Presumptions, 307; 22 Law Lib. 181.) Finding property in a house to which others have access, where no other possession is shown, is not sufficient to raise the presumption against the owner or chief occupant. Other circumstances must be shown. (C. & H. Notes, 426, 7.) And it seems to me in cases where a burglary is connected with a larceny, mere possession of the stolen goods without any other evidence of guilt ought not to be regarded as prima facie or presumptive evidence of the burglary. I .am of opinion, however, that in a case where goods have been feloniously taken by means of a burglary and they are immediately or soon theieafter found in the actual and exclusive possession of a person who gives a false account, or refuses to give any account, of the manner in which he came to the possession, proof of such possession and guilty conduct is presumptive evidence not only that he stole the goods but that he made use of the means by which access to them was obtained. There should be some evidence of guilty conduct besides the bare possession of the stolen property, before the presumption of burglary is superadded to that of the larceny. In the present case there is no evidence of any guilty conduct whatever. There is great room for doubt whether the prisoner ever had the goods in his actual custody. True, they were found in his trunk, and if it had been shown that the goods were locked up in it, and the prisoner was in possession of the key, a strong presumption would be raised that he put them there and claimed the possession. . But there is nothing to connect him with the goods at all, except the fact of their being found in the trunk by the officers. The trunk was not in the prisoner’s custody, but in the midship of a canal boat, in which boat other persons resided and to which any one might have access. The trunk was brought to the boat by the prisoner in the morning, as he informed the persons on the boat, and the witness by whom this is proved testifies that the trunk was locked when she saw it there, about nine.o’clock in the morning. It is not shown that the prisoner opened the trunk after he first brought it there, or that he went to it for any purpose. He left the boat before or about noon. The officer who discovered the goods first saw the trunk some time in the afternoon of the same day, or the day after the prisoner left the boat. It then bore unmistakeable evidence of having been broken open by violence. The officer testifies that the lock appeared to have been broken by a hammer or axe, and that a portion of it was lying on the floor of the boat near the trunk and the trunk had been fastened together by nailing. Only a small portion of the goods stolen were in the trunk. It seems to me the law will scarcely presume that the prisoner broke his own trunk open, until it is shown that he had no key to it; especially when it is not in his actual possession when found in this condition, but is in a situation where others might readily do it. This is scarcely the kind of possession which the law contemplates, in order to raise the presumption even of a larceny.

The fact that a portion of the goods were found in the prisoner’s trunk tinder such circumstances, is little if any stronger than it would have been had they been found in some other part of the boat. And even admitting that the jury were warranted in finding, as a question of fact, that the goods were found in the prisoner’s possession, still I am of opinion the judge should have instructed them that possession alone of that character was not sufficient to raise the presumption that possession was obtained by means of a burglary committed by the prisoner. 1

On this ground, I am of opinion the conviction and sentence should be reversed, and a new trial granted.

Judgment reversed.


source: Caselaw Access Project

author: Pakkee, P. J.

license: Public Domain

text:
    Supreme Court. Albany General Term,
    December, 1853.

      Parker, Wright and Harris, Justices.
    John K. Crozier, pl’ff in error vs. The People, def’ts in error.
    It is not necessary, in drawing an indictment under the act to punish seduction as a crime passed March 22, 1848, to allege mutual or valid promises of marriage. It is sufficient to aver, in the language of the act, that the prosecutrix was seduced under promise of marriage. Per Parker, J. Nor is it necessary on the trial to prove a valid and binding promise of marriage. If the seduction was effected by means of a promise of marriage, though the promise was intended to be and was in fact a false pretence, and one which the seducer knew it was not in his power to perform, the offence is nevertheless within the statute.
    By 11 previous chaste character” the statute means personal Chastity — actual character — not reputation. In the absence of proof such chastity will be presumed. But the presumption may be overcome by specific acts of lewdness proved affirmatively, on the part of the defendant,

      The evidence contemplated by the statute in support of the testimony of the female is not confined to proof of the fact of illicit intercourse, but extends to proof of other material facts; such as the illegitimacy of her child, the regular and frequent visits of the defendant, his being alone with the prose-cutrix at late hours of night, and his confessions made to others on the subject of his engagement to marry her, &c. But it is not sufficient to corroborate her as to immaterial facts contained in her testimony.
    This was a writ of error to the court of sessions of Washington county. The plaintiff in error was indicted under the act passed March 22, 1848, entitled “ an act to punish seduction as a crime.”
    The indictment contained two counts. The first count charged “ that John K. Crosier, late of the town of Salem in the county of Washington, on the 8th day of June, 1849, at the said town of Salem in the county of Washington aforesaid, did unlawfully, and feloniously, under a promise of marriage, seduce and have illicit connection with Emeline J. Oderkirk, an unmarried female of previous chaste character, against the peace of the people of the state of New York and their dignity.
    The second count charged, that the said John K. Crozier, &c.., on, &c., at, &e., “ did undertake and promise to marry Emeline J. Oderkirk, an unmarried female of previous chaste character; and that the said John K. Crozier did then and there unlawfully, under said promise of marriage, seduce and have illicit connection with the said Emeline J. Oderkirk, then and there being an unmarried female of previous chaste character, as aforesaid, against the peace,” &c.
    On the trial of the indictment at the sessions, Crozier was found guilty and sentenced to imprisonment at hard laber in the Clinton state prison for the term of two years. Crozier brought a writ of error.
    The questions raised on the trial sufficiently appear in the opinion of the court.

      James Gibson, for plaintiff in error.

      J. Potter, (Dist. Att’y,) for defendant in error.

       Note. — From other cases reported in this volume, it will be seen there are differences of opinion upon the last two propositions. See The People v. Alger, page 333, and The People v. Safford, page 474.

   Pakkee, P. J.

I shall examine the points made by the plaintiff in error in the order in which they were presented on the argument.

1. The first is that the indictment was defective in not alleg-a mutual promise of marriage.

The counsel for Crozier concludes that the promise contemplated by the act must be a valid promise —one that is legally binding, and depending for its consideration on a corresponding promise made by the party seduced; and argues that a lunatic or an idiot might be made liable for seduction under this statute, unless a valid and binding promise is intended. The answer to that argument is that a lunatic or idiot could not be guilty of that or any other crime, because he is incapable of a criminal intent. He has, in law, no legal responsibility, for a criminal act, though liable for a tort in an action for damages (3 Wend. R. 391; 21 Wend. 619; 6 Hill, 594; 3 Barb. S. C. R. 647; 17 Verm. R. 499.) Even though mutual promises were alleged and proved, a lunatic or idiot could not, therefore, be liable for seduction under this act. But I do not think the statute is intended to be confined to a case of a valid and binding promise of marriage. The offence is seducing “ under promise of marriage.” It is intended to punish seduction criminally, when it is effected by means of such a promise. Whether the promise is binding or hot, if the prosecutrix believes it, the danger and wrong are the same. If the promise is the consideration for, or the inducement to the illicit intercourse, the offence is complete. The offender may be a married man, and the fact of his being so may be unknown at the time to the prosecutrix. It has been decided that in such a case, an action for breach of promise lies against him. (Millward v. Littlewood, 1 Eng. Law and Eq. R. 408.) If the promise is made, and shei, believing in it, yields in consequence to his solicitations, the act is within the statute. Though infancy may be a good defence to an action for a breach of promise of marriage, (5 Cowen R. 475.) I apprehend it would not avail against a prosecution under this act. The offence is certainly of no less magnitude morally, and there is no less necessity for its punishment, because the promise was intended to be, and was in fact a false pretence.

This point presents, after all, only an abstract proposition, incapable of any practical application. It is not a supposable case, that a seduction could be effected under promise of marriage on the part of the seducer, without a corresponding mutual promise to marry, on the part of the seduced. Such promise on the part of the female would be implied, if she yielded to the solicitations of the seducer in consequence of his promise to marry her. Her assent to his promise of marriage completes the contract and makes it mutual.

If I am correct in this view, it follows that the indictment is sufficient. I think the indictment is also sufficient, even if a case of mutual promises is contemplated by the act. The indictment alleges the offence in the words of the statute. In The People v. Taylor (3 Denio, R. 93,) it was said by Bronson, J.: “It is a general, though not universal rule, that in indictments for offences created by statute, particularly misdemeanors, it is sufficient to charge or describe the offence in the words of the statute.” This rule is well established by authority. (7 Peters, 142; 2 Mason; 3 Fairf. 214; 2 Virg. Cas. 402; 1 Iredell N. C. 424; 2 McLean, 131; 2 Burr. 1035.)

2, The second point is, that the court allowed mutual promises of marriage to he proved, though not averred in the indictment. If lain right in holding that mutual promises were unnecessary under the statute, then the evidence of her promise to him might have been omitted, because it was not necessary to convict, but even in that case it was properly received as belonging to the history of the transaction. It was a part of the same conversation in which he promised, and could not be omitted without destroying its connection and meaning. It was also corroborative of her testimony, as to the promise he had made, by supporting its probability. If, on the other hand, the statute contemplates a case of mutual and valid promises to marry, and the indictment was sufficient, as being in the words of the statute, then the evidence was "properly received. If the words “under promise of marriage,” in the statute imply a mutual and binding contract of marriage, then che same words are entitled to the same implication and construction in the indictment. The second point is not, therefore, well taken.

3. The third point is, that the charge to the jury was erroneous in several particulars. One was, in saying that no affirmative proof of the chastity of the prosecutrix was necessary, as the law presumes any person to be of fair character until the contrary appears. Here was no necessity for saying anything about presumptions of law on this question, as the prosecutrix had already testified to her previous chastity, and it had not been successfully impeached. It was a question of character, not of reputation. It was a question of actual personal virtue. Such was the construction given to the words previous chaste character” in a kindred statute, and I have no doubt correctly, in Carpenter v. The People, (8 Barb. S. C. Rep. 603.) Now, it seems to me .plain, that this comes within the general rule, that good character is to be presumed of parties, witnesses, &c., until the contrary is shown. Chastity is the general law of society. A want of chastity is the exception. It could only be impeached by showing acts of illicit intercourse. This can not be required to be gone into negatively on the part of the prosecution, by calling witnesses to prove they have not had illicit intercourse with her. Chastity is to be presumed. Such presumption may he met by specific acts of lewdness proved affirmatively on the part of the defendant.

The part of the charge next excepted to related to the necessity of proving mutual and valid promises of marriage. I have already disposed of that question on the first objection taken to the indictment.

The third exception was to the following portion of the charge; the judge charged: “ That the evidence as to the illicit intercourse with defendant, was supported by the fact, thát she was impregnated; that she gave birth to a child, and that the defendant was a regular visitor.” The statute provides that no •conviction shall be had on the testimony of the female seduced, unsupported by other evidence. The counsel for Crozier is mistaken in supposing that the statute intends to require, by the words, “ other evidence,” positive proof by some other person than the prosecutrix, of the fact of illicit intercourse. Such evidence could rarely, if ever, be obtained. The statute requires corroborating evidence, but has not pointed out what it shall be. That she had given birth to an illegitimate child, and that Crozier was a regular visitor, were facts proved by others, that certainly supported, to some extent, her evidence. So were the facts that he proposed marriage to her by a message sent to her, as proved by her uncle; that he virtually admitted to the-same witness his engagement to marry her; that he was alone with her late at night, and that angry-words passed between them, when he was about to marry another, as proved by Fish. The charge was not only correct on this point, but the evidence would have warranted the presiding judge in enumerating several other facts as supporting her testimony.

The judge also charged that there was no proof of improper intercourse between the prosecutrix and the witness, March, at Graves’ tavern, and that the law would not presume it from the facts proved.

This part of the charge was strictly correct. There was no proof of any improper intercourse at the time and place mentioned March testified to none. She testified she had no intercourse with March; showed how she came into his company at that time; stated additional facts and explained the circumstances relied on as suspicious and as warranting an unfavorable presumption. When the judge said the law will not presume it from the facts proved, he intended to include all the facts proved on both sides relating to that transaction; and clearly from them no unfavorable inference could be drawn.

Most of the several requests and refusals to charge, are but the converse of the propositions already discussed, and call for no further notice. But there is one which presents a different question. Crozier’s counsel asked the court to charge, “ that supporting evidence of immaterial facts contained in her evidence was not supporting evidence within the statute.” The court refused so to charge, to which refusal the defendant’s counsel excepted.

This decision was palpably erroneous. When the statute provided that no conviction should be had under the provisions of that act on the testimony of the female seduced, unsupported by other evidence, it certainly did not mean that it was sufficient to support any immaterial evidence she may have given. The facts as to which she is corroborated must be material facts, though it is not necessary that one of them should be that of illicit intercourse itself. Many other facts may be material, as I have already shown. For this error, the judgment of the County Court must be reversed, and a new trial awarded.

Harris, J., concurred. Wright, J., concurred in the conclusion, upon the ground last considered, but dissented from the opinions expressed on the first and second points.


author: Marvin, P. J. —

text:
    Supreme Court. Erie General Term,
    January, 1854.

      Marvin, Bowen and Green Justices.
    Mackay pl’ff in error vs. The People def'ts in error.
    The power to punish by imprisonment in a state prison, upon a conviction foi an attempt to commit a crime, is not limited to those cases where the imprisonment in a state prison, if the crime attempted had been consummated, must be for four years or more; but in all cases where the crime attempted may be punished four years or more in a state prison, the court may sentence the convict to imprisonment in a state prison for a time not exceeding one half of the longest time of imprisonment prescribed for a conviction of the offence attempted.
    Where, by the statute, the imprisonment in the state prison for a commission of the crime attempted must be for a term less than four years, the person convicted of the attempt can only be sentenced to imprisonment in a county jail for not more than one year.
    Grand larceny being punishable for a term of not more than five and not less than two years, a person convicted of an attempt to commit grand larceny may be sentenced to imprisonment in the state prison for two years and six months.
    Error to the Erie sessions. The plaintiff in error was convicted of an attempt to commit grand larceny. The court of sessions sentenced him to confinement in the state prison at Auburn, for the term of two years and six months. Tho writ of error was prosecuted to reverse the sentence.

      B. H. Austin, for the plaintiff in error,
    cited 2 R. S. 679, §63; ib. 700, § 12; ib. 698, § 3; subd. 2, 3.

      A. Sawin, ( Dis’t Att’y) for defendants.
   By the Court,

Marvin, P. J. —

The counsel for Mackay insisted that the court of sessions had no authority to sentence him to imprisonment in the state prison, but that he should have been sentenced to imprisonment in the county jail for not more than one year.” He argues that there can be no imprisonment in the state prison upon a conviction for an attempt to commit any crime, unless the punishment for the crime attempted must necessarily be imprisonment in a state prison for four years or mure. The punishment for grand larceny, is imprisonment in a state prison for a term not exceeding five years. (2 R. S. 679, § 63.)

The imprisonment upon a conviction for grand larceny may be for any term less than five years and not less than two years. 2 R. S. 698, § 3, provides for the punishment for an attempt to commit an offence' prohibited by law. By the second subdivision of the section, it is provided that, “ If the offence so attempted be punishable by imprisonment in a state prison, for Jour years or more, or by imprisonment in a county jail, the person convicted of such attempt, shall be punished by imprisonment in a state prison or in a county jail, as the case may be, for a term not exceeding one half the longest term of imprisonment prescribed upon a conviction for the offence so attempted.”

The third subdivision provides, If the offence so attempted be punishable by imprisonment in a state prison for any time less than four years, the person convicted of such attempt shall be sentenced to imprisonment in a county jail for not more than one year.” It is also provided in the same act, (p 700, § 12,) that no person shall in any case be sentenced to imprisonment in a state prison for any term less than two years. In view of these provisions, I think the power to punish by imprisonment in a state prison, upon a conviction for an attempt to commit a crime, is not limited to those cases where the imprisonment in a state prison, if the crime attempted has been committed, must, by the statute, be four years or more. On the contrary, I think, in all cases, where the crime attempted may be punished four years or more in a state prison, the court may sentence the convict to imprisonment in a state prison “for any time not exceeding one half the longest time of imprisonment prescribed upon a conviction for the offence so attempted,” of course not less than two years. In those cases where by the statute the imprisonment in state prison for the crime attempted, must be for a term less than four years, the person convicted of the attempt can only be sentenced to imprisonment in a county jail for not more than one year. The crime of grand larceny is 'punishable by imprisonment in state prison for a term of five years. It can not exceed five years, and it may be for any time between two and five years, in the discretion of the court. It is true it is not necessarily punishable four years or more, and it is also true that it is punishable by imprisonment in a state prison for a term less than four years, though it may exceed that. The intentions of the legislature in subdivisions second and third are not very clearly expressed. Effect must be given to the latter clause of subdivision two, “for a term not exceeding one half the longest term of imprisonment prescribed upon a conviction for the offence so attempted.” In a conviction for grand larceny, the longest term of imprisonment is five years, and unless this subdivision, is to be construed as limiting the power of the court to imprison in state prison, to cases where the punishment for-the crime attempted must be for four years or more, then the court, in the present case, has not exceeded its authority. The sentence was for two years and six months, half of the longest term of imprisonment prescribed for .the crime of grand larceny. The view I have taken of these provisions of the statute is strengthened by considering the general system of our criminal code as declared in the statute. There are many crimes, the punishment for which, by imprisonment in state prison, is left entirely discretionary with the court, not exceeding a specified term, and of course not less than two years; thus, for inveigling or kidnapping, the punishment is to be by imprisonment in a State prison not exceeding ten years; accessories are to be punished by imprisonment in state prison not exceeding six years, or in a county jail, &c.; so for selling, &c., a person of color kidnapped, &c., the imprisonment is not to exceed ten ■years; it may be in a county jail, &c. So, for decoying children. For abandoning children, the imprisonment is not to exceed seven years. Arson, in the fourth degree, may be punished by imprisonment in the state prison for a term not more than seven years and not less than two, or the imprisonment may be in a county jail, not exceeding one year. Persons falsely personating another and doing certain acts, upon conviction, are to be punished by imprisonment in a state prison for a term not exceeding ten years. By looking through the statute, many other cases will be found where the punishment is to be by imprisonment not exceeding ten years, and some not exceeding seven years, &c., leaving the term of imprisonment between the time specified and two years entirely discretionary with the court. In all these cases the punishment may he by imprisonment in a state prison for a term less than four years, and there is nothing-requiring that the time of imprisonment should be four years or more; and if the construction of subdivisions 2 and 3, of section 3, (2 R. S. 698,) for which the counsel for the plaintiff in error contends, is correct, viz.: that no person can be sentenced to a state prison, except in a case where, had he been convicted of the crime attempted, he must have been sentenced for four years or more; then, in all the cases above referred to and other cases, where the time of imprisonment is not to exceed ten years or seven years, or other period above four years, and may be less than four years, there can be no imprisonment in a state prison upon a conviction for an attempt to commit the crime. The person convicted of an attempt to commit these high crimes can only be punished by imprisonment in a county jail one year. In my opinion such is not the true construction of the statute.

It has been noticed that no person can be sentenced to a state prison for a term less than- two years, and imprisonment in a county jail is limited generally to one year. By consulting the revisers’ notes, it will be seen that they reported, that, “ If the offence so attempted be punishable by imprisonment in a state prison or a county jail, the person convicted of such attempt shall be punished by imprisonment in a state prison or in a county jail, for a term not exceeding the one half of the longest term for which he might have been sentenced to such imprisonment, if he had been convicted of the offence so attempted.” There are cases where the punishment may be by imprisonment in state prison for a term not exceeding three years and so also not exceeding two years. As the system prohibited sentencing any person to imprisonment in state prison, for a term less than two years, the provision, as reported, left it in doubt what sentence should be given in cases where the imprisonment in state prison was to be for a term less than four years, as the imprisonment upon a conviction for the attempt was not to exceed the one half of the longest time for which, the convicted person might have been sentenced if he had been convicted of the offence attempted. The legislature, I think, attempted to obviate the difficulty and substituted subdivisions 2 and 3, in § 3, as we now find them. Hence the language “ punishable by imprisonment in a state prison for four years or more ” and retaining the language in the original, as proposed by the revisers, authorizing the imprisonment “for a term not exceeding one half the longest term of imprisonment prescribed upon a conviction for the offence so attempted.” In these cases, when the imprisonment was to be less than four years, a sentence for half the time would be a sentence for less than two years, which by another provision of the same statute, was prohibited. Hence the provision in the 3d subdivision, requiring in such cases imprisonment in a county jail.

I think the sentence of the Court of Sessions was authorized by the statute and that the judgment should be affirmed.

Judgment affirmed


author: Welles, J. —

text:
    Supreme Court. Monroe General Term,
    March, 1854.

      Welles, Selden and Johnson, Justices.
    Henry Woodin pl’ff in error vs. The People def’ts in error.
    On the trial of an indictment for rape, it is competent for the counsel for the prisoner, on the cross examination of the prosecutrix, to ask her whether the treatment complained of “ was with her consent or against her will.”
    Such a question is not objectionable in form, but if the objection to it had been put on that ground, and an exception taken, it would not have been available, for the form of a question, if not otherwise objectionable, is a matter ofdis-cretion with the court.
    The credibility of witnesses is exclusively a question for the jury, and it is not erroneous in the court to refuse to charge the jury how they ought to find in a case resting on the credibility of witnesses.
    The opinion of a physician upon a question not involving medical skill or science is not admissible evidence.
    Where i.t appeared from the testimony of a physician that the prosecutrix for an alleged rape was of more than ordinary strength and health, and that the defendant was sixty years of age, the following question, put to the same witness, was held to be incompetent. “ From what you know of her health and strength, in your opinion, could the defendant have had carnal connection with her against her will, without resort to other means than the exercise of his ordinary physical powers?” Held, that this was a question in regard to which the jury could judge equally well with the witness, and did not involve medical skill or science, and was not a case for an expert.
    Held, also, that the question, whether in the opinion of the witness a rape could- be committed on a female who had borne children, and also was in ordinary health and strength, without resort to other means than the exercise of ordinary physical powers, came within the same rule and was incompetent, though the prosecutrix, had previously testified that she had borne two children before the alleged rape, and that the ravishment was accomplished by means of the superior strength of the prisoner.
    When the prosecutrix had testified, that as soon as practicable after the alleged rape she made it known and complained to her husband, and to her mother and Judge Jerome and other persons, and was corroborated by the testimony of her husband as to the disclosures to him, and it appeared that Judge Jerome was present at the trial and was not called as a witness, it was held not to he erroneous for the court to refuse to charge the jury, that the corroborating evidence of Judge Jerome and others as to her disclosures was necessary to confirm her testimony and entitle it to full credit; and held that the court correctly charged the jury, that it was not necessary for the people to call the other persons referred to as witnesses, if the jury were satisfied that the prosecutrix and her husband had testified truly, in regard to the communications made by her.
    This case came before the court on certiorari to the court of Oyer and Terminer of Ontario county. The facts are sufficiently stated in the opinion of the court.

      A. Worden, for plaintiff in error.

      J. A. Spencer, for defendants in error.
   By the Court,

Welles, J. —

The defendant was tried and convicted at the Oyer and Terminer in Ontario county, in February, 1853, of a rape upon the body of Sarah Woodin, his son’s wife.

In the course of the direct examination of the prosecutrix as a witness, and after she had testified to the principal facts of the case, the district attorney asked the witness the following question: “Was this treatment with your consent or against your will?” The defendant’s counsel objected to the question, “ on the ground that it is the very question for the jury to de-determine from all the facts,” &c. The court overruled the objection, and the defendant’s counsel excepted, and the witness answered that it was wholly against her will. There was no error in this decision. The only possible objection there could be to the question, was in relation to its form, as indicating the answer of the witness in one of two ways. If the objection had been placed on that ground, it would not have been error, for the reason that the form of a question, if it is hot otherwise objectionable, is a matter of discretion with the court. The objection, however, was not put on the ground of the form of the question; nor do I think the question was objectionable in form even. As to its substance, it was clearly proper, as going to prove directly an essential ingredient of the crime charged.

After the prosecution rested, the defendant’s counsel requested the court to instruct the jury, that, as matter of law, it was not a case where, upon the evidence, there could legally be a conviction for the offence of rape, which request the court declined and the defendant’s counsel excepted. If the testimony of the witnesses was to be believed, the crime charged was, in my opinion, proved. The credit of the witnesses was, exclusively, a question for the jury. The request of the defendant’s counsel was therefore properly refused.

It was proved, on the part of the defendant, by a physician, who knew the defendant and the prosecutrix, and lived in their neighborhood, that she, the prosecutrix, was a female of more than ordinary strength and health, and that the defendant was sixty years of age. The defendant’s counsel then asked the physician the following questions: “ From what you know of Mrs. Woodin’s health and strength, in your opinion, could the defendant have carnal connection with her against her will, without resorting to other means than the exercise of his ordinary physical powers'? From what you know of Mrs, Woodin’s health and strength, in your opinion, could a man have carnal connection with her against her will, without resort to violence, beyond the exercise of his ordinary physical powers?” To each of these questions the counsel for the people objected, which objections were sustained, and the defendant’s counsel excepted. The evidence of the opinion of the witness was clearly inadmissible. It did not involve medical skill or science, nor was it a case for an expert. The jujy could judge equally well with the witness, after they were, in possession of the facts, upon which he must necessarily base his opinion.

The defendant’s counsel then offered to prove by the same and other medical witnesses, that the crime of rape could not, in their opinion, be committed upon a female who has'borne children, and who is in ordinary health and strength, without 3 resort to other means than the exercise of his ordinary physical powers. This offer was objected to on the part of the people, and the objection sustained, and an exception taken. The pro-secutrix had previously testified that she had two children before the alleged rape was committed upon her, and in detailing the circumstances of the ravishment, she stated, in substance, that the defendant accomplished his purpose by means of his superior strength. I think the evidence here offered was equally objectionable with the last. It was not a subject for the evidence of the opinions of experts or of scientific men.

The prosecutrix had testified, in substance, that as soon as practicable after the consummation of the crime by the defendant, she made complaint to her husband and made known to him the violation of her person. Also that soon afterwards she stated the same things to her mother, Judge Jerome, and some other persons. Henry Woodin, jr., her husband, corroborated her testimony in relation to her disclosures to him and to Judge Jerome. The bill of exceptions states that Judge Jerome was in court during -the trial as a witness subpoenaed by the people and the defendant. Also that there was no evidence from any of the persons to whom she testified she made known the alleged violation of her person, except the testimony of her husband.

The charge of the presiding justice to the jury was full upon all the points and questions involved. Quite a number of exceptions were taken to various parts and portions of it respectively, by the defendant’s counsel. I do not feel called upon to nutice them in detail, but content myself with remarking that, in my judgment, none of the exceptions are well taken. The one most relied upon on the argument, is the one growing out of the request of the defendant’s counsel that the court should charge the jury that the omission to confirm the testimony of the prosecutrix in relation to her disclosures to the individuals to whom she made them, besides those to her husband, was an omission to show by competent proof, important circumstances, necessary to confirm her testimony and entitle it to full credit. The presiding judge refused so to charge, and the defendant’s counsel excepted; and the judge did thereupon charge the jury on that subject, that it was not necessary for the people to call the other persons referred to, as witnesses, if the jury were satisfied that the prosecutrix and her husband had testified truly in regard to the communications made by her. The judge also stated to the jury that Judge Jerome had been in attendance as a witness during the whole trial, and might have been caMed upon to contradict the statements alleged to have been made to him had they been untrue, to which the defendant’s counsel excepted. I do not discover any just ground of complaint in respect to the charge or refusal to charge in this respect. It was true that Judge Jerome was in court as remarked by the judge to the jury. The prosecutrix had testified that she made the disclosures to her husband, and he had testified to the same thing. If the jury believed them, it was sufficient. The omission to call the other persons as witnesses did not, in my opinion, warrant the court to instruct the jury that she was thereby discredited. ' It was, after all, a question for the jury, and involved no legal point upon which an exception could be taken.

Upon the whole, I am constrained to say that, in my judgment, the charge was throughout just, liberal and fair, and was not obnoxious to any legal objection. Much of the argument of the defendant’s counsel was designed to show that the verdict was not warranted by the evidence. This we can not give heed to in a writ of error or certiorari in the nature of a writ of error, founded upon a bill of exceptions.

The judgment of the court of Oyer and Terminer should be affirmed


author: Bacon, J. —

text:
    Supreme Court. Oswego General Term,
    April 1854.

      Hubbard, Pratt and Bacon, Justices.
    Adam Dennis pl’ff in error vs. The People def’ts in error.
    ' On tiie trial of an indictment for forgery, alleged in the first count to have been committed by the defendant, by having in his possession a forged bank note, purporting to have been issued by a certain banking association, with intent to utter the same, and in the second count, with uttering and publishing such notp, it is competent to prove by parol that there is such an institution in existence doing business in this state, without introducing in evidence the articles of association under which such bank was organized.
    This was a certiorari to the Oyer and Terminer of the county of Onondaga. The plaintiff in error was indicted in that court for forgery. By the first count in the indictment, it was presented “ that Adam Dennis, late of the city of Syracuse, in the county of Onondaga aforesaid, on or about the fifteenth day of November, in the year of our Lord one thousand eight hundred and fifty-three, with force and arms, at the city of Syracuse, in the county of Onondaga aforesaid, feloniously had in his custody and possession, and did receive from some person or persons to the jurors aforesaid unknown, a certain forged and counterfeit negotiable promissory note for the payment of money, commonly called a bank note, purporting to have been issued by a certain association or company called the Bank of Lowville, duly authorized for that purpose by the laws of the state of New York, which said last mentioned false forged and counterfeited negotiable promissory note for the payment of money is as follows, that is to say.” (Here followed a description of a two dollar bank note on the Bank of Lowville.) “With intention to utter and pass the same as true, and to permit, cause and procure the same to be so uttered and passed, with the intent to injure and defraud the Bank of Lowville and divers other persons to the jurors aforesaid unknown, he the said Adam Dennis then and there well knowing the said last mentioned false, forged, and counterfeited promissory note for the payment of money to be false, forged and counterfeited as aforesaid, against the form of the statute in such case made and provided, and against the peace of the people of the state of New York and their dignity.”
    The second count was as follows, “ and the j.urors aforesaid, upon their oaths aforesaid, do further present, that the said Adam Dennis afterwards, to wit: on the day and year last aforesaid, with force and arms at the city and county aforesaid, feloniously and falsely did utter and publish as true, with intent to injure and defraud the said the Bank of Lowville, and divers other persons to the jurors aforesaid unknown, a certain other false, forged, and counterfeited negotiable promissory note for payment of money, commonly called a bank note, purporting to have been issued by a certain corporation or company, called the Bank of Lowville, duly authorized for that purpose by the laws of the state of New York, which said last mentioned false, forged, and negotiable promissory note, for the payment of money is as follows, that is to say: (Here followed a description of a two dollar bank note on the Bank of Lowville.) The said Adam Dennis, at the said time he so uttered and published the said last mentioned false, forged and counterfeited negotiable promissory note for the payment of money, as aforesaid, then and there well knowing the same to be false, forged, and counterfeited, 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 plaintiff in error pleaded not guilty. On the trial of the cause, E. B. Wicks, a witness sworn for the prosecution, was asked the following question: “Is there such an institution doing business in the state of New York as a banking institution as “ The Bank of Lowville.” This question was objected to by the prisoner’s counsel on the ground that parol proo'" could not be given of that fact, and that the prosecution should produce the • articles of association of the institution for that purpose. The court overruled the objection and the prisoner’s counsel excepted.
    The witness testified that there was an institution doing business as a banking institution at Lowville, in Lewis county, that he had been in their banking house, and done business with them, &c. The jury found the defendant guilty, whereupon the cause was brought before this court.

      J. R. Anderson, for the plaintiff in error.
    The objection taken to the evidence offered and received was well taken and should have prevailed. (Barb. Cr. Law, 293; 6 Johns. 19; 12 id. 221; 25 Wend. 472; 8 John. 378; 14 id. 416; 1 Wend 555; 3 id. 296; 4 Denio, 392; 7 Wend. 539; 15 Wend. 314; 2 Russ, on Cr. 354; Russ, and Ryan, 291.)

      Chs. Andrews, for the people.
    The question to the witness was proper. The objection was put on the ground that the act of incorporation must be produced, and that parol evidence of that fact could not be received. The production of the act of incorporation would not affect the question, as it would still remain to be proved by parol that they were doing business as a bank.
   By the Court,

Bacon, J. —

The plaintiff in error was indicted at the Onondaga Oyer and Terminer, in February, 1853, for the crime of forgery. The first count of the indictment charged the prisoner with having in his custody and possession a certain forged and counterfeit negotiable promissory note for the payment of money, commonly called a bank note, purporting to have been issued by a certain association or company called the Bank of Lowville, duly authorized for that purpose by the laws of the state of New York. The note was then set forth and the prisoner was charged with having said note with the intention to utter and pass the same as true, and to procure the same to be uttered and passed with the intent to injure and defraud the Bank of Lowville, and divers other persons to the jury unknown, he well knowing the same to be false, forged, &c.”

The second count charged him with uttering and publishing the note as true. 4

The indictment was framed under the 3Qth section of the 3d title, part 4 of the Revised Statutes in relation to the crime of forgery. (2 R. S. 674.) On the trial a witness was asked the following question, “Is there such an institution doing business in the state of New York as a banking institution, as the Bank of Lowville.” This question was objected to by the prisoner’s counsel, on the ground that parol proof could not be given of that fact, and that the prosecution should produce the articles of association of the institution for that purpose. The court overruled the objection, and the prisoner’s counsel excepted. The witness answered that there was such an institution doing business at Lowville, Lewis County; that he had been in the banking house and done business with them. The jury found the defendant guilty.

On the argument the counsel for the prisoner insisted that under the plea of not guilty to an indictment of this description, the prosecution were bound to prove as much as would be required in an action at law under a plea of nul tiel corporation. No authority was cited for the proposition, nor can I find any adjudged case in which this doctrine is held, and it is safe to conclude that no such strictness is required.

.In the case of The People v. Davis, (21 Wend. 309,) the indictment was in the same form with the one in the case at bar, charging the prisoner with having in his possession with intent to utter, a note purporting to have been issued by the Morris Canal and Banking Company, duly authorized for that purpose by the laws of the state of New Jersey. On the trial, the counsel for the prisoner requested the Recorder to charge that the averment that the company was duly authorized by the laws of New Jersey must be proved by legal evidence of the act of incorporation, and such proof not having been given, the prisoner was entitled to an acquittal. The Recorder declined so to charge, but instructed the jury that it was enough that proof should be given to satisfy them of the existence of such an institution. On writ of error, the Supreme Court held the ruling to be correct, Nelson, Ch. J., saying that eyen “ construing the phrase purporting to be issued by a-bank lawfully authorized for that purpose in its strictest sense, still the kind or degree of proof is not prescribed, and the fact is left to be proved in the ordinary way, under which as heretofore practiced in like cases, the best evidence that might be furnished is not required.” The conviction in that case was held to be right, and the principle established seems to me clearly to authorize the proof given, and the conviction which followed in the present case.

The case of People v. Peabody, (25 Wend. 472,) was cited by the counsel for the prisoner as an authority which held that the existence of the bank could only be proved by the introduction of a certified copy of the articles of the association, and that such are the only competent proof. It is true that in that case such proof was given, but it is to be noted that in that case the Bank of Warsaw had never commenced operation, nor issued any bills. In this case the question was whether there was such an institution doing business- as the Bank of Lowville and that fact it was competent to prove in the manner and by the proof given in this case. It is not said in The People v. Peabody that the production of the articles is the only competent proof in all cases where the existence of a banking institution doing business is in question, and the principle of The People v. Davis is expressly recognized and reaffirmed. We do not see that any error was committed by the Oyer and Terminer in this case, and the proceedings are remitted to that court with directions to proceed, and render judgment.

Proceedings affirmed.


author: Hand, J. —

text:
    Supreme Court. Saratoga General Term,
    May, 1854.
    Hand_ Cady and Allen, Justices.
    Safford, pl’ff in error vs. The People def’ts in error.
    A writ of error, for the purpose of reviewing a final judgment of the court of Oyer and Terminer, is a writ of right and brings before the Supreme Court the bill of exceptions with the transcript of the record.
    In all cases of felony, before the passing of sentence, the court should demand from the defendant what he has to say why judgment should not be pronounced against him: and the fact that the defendant was present and that such demand was made, ought to appear upon the record.
    On an indictment under the “act to punish seduction as a crime” passed in 1848, the defendant may show that the prosecutrix was not of “previous chaste character" either by proving an actual want of chastity on her part, or by showing her general bad reputation for chastity. Per Hand, J.

    Where the illicit intercourse, between the prosecutrix and the defendant, began 4 or 5 years before the finding of the indictment, and continued until within two years, it was held not to be a case of seduction within two years previous to the finding of the indictment, and not to be within the statute.
    Exceptions may now be taken on the trial of a criminal cause, in the same cases and manner provided by law in civil cases.

      It seems, that the jury are no more judges of the law in criminal then in civil cases.

    Writ of error to the St. Lawrence Oyer and Terminer. The prisoner was indicted, tried,, convicted and sentenced to the state prison, under the “ act to punish seduction as a crime.” {Laws of 1848, ch. 111.) The indictment was found in February, 1853; the prisoner arraigned in'June, 1853, and tried in October, 1853 — Mr. Justice Cady presiding. The prosecuting witness testified, that she and the prisoner had lived in the same neighborhood from their childhood and were very intimate; their parents residing near each other, and their brothers and sisters having intermarried. That the prisoner had sexual intercourse with her first in June, 1851, before which he had paid his addresses to her, and had promised to marry her. That he attempted to have connection with her four or five years before, but did not fully succeed; that he had tried many times before June, 1851, but only partially succeeded a few times. That she had a child by him, born in March, 1852. Her mother proved a promise of marriage by the prisoner. A witness for defendant testified, that four or five years before the trial, she saw the prisoner and prosecuting- witness go into the bushes and lie down together, he laying his arm around her. Some other testimony was given, not material to the case before the court. The counsel for the prisoner, in summing up to the jury, insisted that, if the jury found from the evidence, that the first seduction was more than two years before this indictment was found, they should acquit, and asked the court so to charge; and that if prior to the sexual intercourse in June, 1851, the prose-cutrix was of unchaste character as to the defendant or any other person, he was entitled, as matter of law, to be acquitted, and asked the court to so charge. The district attorney contended, that “ previous chaste character,” in the statute, meant chaste character as to other persons than the defendant; and that prior unchastity, as to the prisoner, was no defence. That if he seduced her under a promise of marriage more than two' years before the indictment, and had sexual intercourse with her afterwards under a promise of marriage, the several acts were continuous and a perpetuation of the same crime and he oould not set up as a defence that he had perpetrated the same offences before the statute was passed, and that there was no evidence of a connection more than two years before finding the indictment. The court refused to charge on the point, whether an act of connection more than two years before finding the indictment could operate as a defence in law, but left the question to the jury, and the defendant excepted. The entry of judgment was as follows:
    “ St. Lawrence county Oyerand Terminer, October 18, 1853. The People v. Hiram Safford — Indictment for seduction.
    The above named defendant having been heretofore (to wit, on the 21st day of June, 1853,) arraigned upon the above indictment, and having pleaded not guilty thereto, and having been held to bail for his appearance at this court, and having been tried by a jury and found guilty; judgment having been moved by C. G. Myers, Esq., district attorney, court did on the 21st day of October, 1853, sentence the said defendant, Hiram Salford, to imprisonment in the Clinton state prison, at hard labor, for two years six months.” (Signed by the clerk.)

      W. G. Paris, for the prisoner.

      C. J. King, for the people.

       See The people v. Crozier, page 453.

         See The People v. Finnegan, page 147.

   By the Court.

Hand, J. —

The objection that this cause is not properly before this court, is not valid. The court of Oyer and Terminer gave final judgment, and that being a court of record, a writ of error on the part of the defendant was a writ of right, and took up the bill of exceptions with the transcript of the record. (2 R S. 740, § 15; 736, § 21; Regina v. Paty, 2 Salk. 504.) The respective offices of writs of error and of certiorari, are quite well settled. (2 Burr. Cr. 193; 2 Tidd, 1051; 1 id. 330; People v. Judges of Suffolk, 24 Wend. 553; 5 Hill, 269; 3 id. 42; 1 Ld. Raymond, 469; Chitt. Cr. L. 747; 1 Paine & Duer, 84; 2 R. S. 736, § 27; Barb. Cr. L. 341.)

By the record, as certified to us, it does not appear that the court demanded of the defendant what he had to say why judgment should not be pronounced against him. This undoubtedly was necessary; and, it seems, it must appear by the record to have been done. (King v. Spike, 3 Salk. 358; Rex v. Geary, 2 id. 630; Buncomb’s Case, 3 Mod. 263; 1 Chitt. Cr. L. 700; 4 Bl. 375; Barb. Cr. L. 330; and see Plowd. 387; Rosc. Cr. Ev. 245: Rex v. Ratcliffe, 1 Wils, 150; King v. Garside, 2 A. & E. 266; 2 Toml. Dict. 295.) This not appearing.upon the record was one of the causes for which the attainder of Bascomb was reversed after his death. In one of our sister states, the court seems to have considered this practice applicable only to capital cases. (West v. State, 2 New Jer. 212.) And most of the .cases above cited were upon convictions for treason, but the principle is the same; and the reason stated in all the books is, that the prisoner may have a pardon to plead or he may move in arrest of judgment; and neither Chitty or Blaclestone make any distinction. The former says, it is indispensably necessary even in clergyable felonies. The practice has its foundation in good sense and common justice, and the principle certainly applies to all cases of felony; and this crime seems to have been placed in that grade by our statute. (2 R. S. 702, § 30; Carpenter v. Nixon, 5 Hill, 260.) On conviction for misdemeanors, and especially when tried by courts of special jurisdiction, and in which there is no power to arrest judgment, perhaps the reason of the rule fails. It has been said that a copy of the indictment, bill of exceptions and judgment of the court only, need be returned. (People v. Gray, 25 Wend. 165; 2 R. S. 740, § 20; 758, §§ 5, 6.) The case of The People v. Gray, was reversed on another point, and I can not think that the entry of judgment is perfect in case of felony, unless it appear that the prisoner was present and had an opportunity to be heard against being sentenced. In this case, it does not appear that he was present during the term at which he was tried. The omission was probably from mere inadvertence in making the entry; and as the record is not removed, perhaps the court below has the power to amend, though that is not clear. (1 Chitt. Cr. L. 753; 2 Salk. 632.)

But I think some of the objections at the trial were well taken The defendant requested the court to charge the jury, that if the first seduction (or connection) was more than two years before indictment found, they should acquit; and that if prior to June, 1851, the prosecutrix “ was of unchaste character as to the defendant or any other person, he was entitled as matter of law” to be acquitted. The court declined to charge upon the point whether a connection between the prosecutrix and defendant more than two years before the indictment, was a defence, but left the question to the jury.

Several things are necessary to convict under this act. (Laws of 1848, ch. 111.) There must be a promise of marriage, seduction of and illicit connection with an unmarried female, who must have been of “ previous chaste character,” and the indictment must be found within two years after the commission of the offence; and the prosecution can not be sustained by the testimony of the female seduced, unsupported by other evidence.

In this case, the promise of marriage was proved, and proof was given tending to show carnal connection of the parties four or five years before the trial. But I find no evidence of the seduction or illicit connection within two years before the indictment, except that of the prosecuting witness. The statute does not say there must be two witnesses, as required in case of treason. But the facts constituting the crime can not be proved by the seduced alone: she must be supported by direct evidence, or proof of circumstances, on all the material allegations of the indictment. However, no point seems to have been taken on the trial on this branch of the case. But she must also have been “ of previous chaste character.” In a case arising upon another statute, an act to punish abduction as a crime,” (Laws of 1848, ch. 105,) it was said to “ mean actual personal virtue; that the female must be actually chaste and pure in conduct and principle up to the time of the commission of the offence.” (Carpenter v. People, 8 Barb. 608; Welles P. J.)

The word “ character” has been variously used in legal proceedings; and sometimes denotes the personal, official or special character in which a party sues, or is sued, as executor, •officer, &o., but it more frequently refers to reputation or common report. (1 Cow. & Hill’s Motes, 460; 1, 768, and cases there cited; Leddy v. Toucey, 2 Wend. 352; King v. Root, 4 id 113.) And is seldom used as synonymous with mere inclination or propensity, or even secret habit, nor as descriptive of the mere qualities of individuals, only so far as others have formed opinions from their conduct. And by the addition of this word, it would seem the legislature intended something more than mere impurity of mind; otherwise the requirement would have been simply that the female should be “ previously chaste.” But the act does not say previous general chaste character. This is a penal statute, creating a new offence, and the accused is not confined to general reputation. I am not prepared to say that one secret, solitary act of illicit intercourse, no matter bow long previous, nor under what circumstances, would be such conclusive proof of unchaste character, as to prevent her being the subject of seduction under the statute, although it would render the female impure, and to a degree unchaste and immoral in fact. But repetition of the offence with different persons must, necessarily, more or less, establish a character for lewdness with some portion.of the community; and that is enough for the defence, especially as she would be unchaste in fact. And the result would be the same if such intercourse was with an individual, and the fact was known to others or believed by them. So that, if the accused is not confined to general reputation, practically, the rule as above suggested and that laid down in Carpenter v. People, would probably require the same proof and produce the same result.

But I think the defence is not confined to cases of actual incontinency, but may prevail upon the ground of reputation alone, and that if the jury find the female really had the reputation of being unchaste, the case is not within the statute. The use of the word character,” is important in this respect, and in such case she does not come within the class described in the act, although illicit intercourse, in fact, can not be proved. However, notwithstanding the phraseology of the law, if the defence relies upon her bad reputation' alone, to prevent abuse, it is no more than reasonable that the proof should show prior general bad character for chastity, or at least considerable notoriety.

If the illicit intercourse began four or five years before the indictment and had continued until within two years, the jury should have found for the defendant, on the question of seduction within two years. It would be rather a loose construction of the statute, to hold, that a woman who had continued in the practice of fornication with a man for four or five years, and up to the time she prosecutes, had been seduced within the last two years. The counsel for the prosecution, on the trial, seems to have supposed the commission of the crime might be charged, as it were, with a continuance for several years, or that each occasion was a first seduction. A nuisance may be stated as continuing, it seems. (Arch. Cr. Pl. 36.) And in crim,-. con., the injury may be stated to have been committed on divers days and times. But seduction and the act of illicit intercourse, under certain circumstances, complete the crime, and such a construction is hardly within the spirit of the act, which was not intended to punish illicit cohabitation, but the seduction of a virtuous female under a promise of marriage,

Proof was adduced to show intercourse four or five years before trial, and from the testimony of the principal witness, it is to be feared there was very little reformation afterwards. The conduct of the defendant may have been, and probably was, cruel and dishonorable, but he must be legally convicted before he can be punished.

The defendant, though a different practice formerly prevailed, (2 Russ. on Cr. 725, § 6; ex parte Barker, 7 Cow. 143; and see People v. Comstock, 8 Wend. 549,) now may take exceptions, “ in the same cases and manner provided by law in civil cases,” (2 R. S. 736, § 21,) and the better opinion seems to be, that the jury are no more judges of the law in criminal than in civil cases, except that a verdict of acquittal is conclusive. (Whart. Cr. Tr. 886, 893, and cases there cited; People v. Pine, 2 Barb. 566; Carpenter v. People, supra; Cow. & Hill’s Notes, 150, § 1.) However this may be, when requested, the judge should instruct the jury upon a question of law fairly arising in the case. (People v. Gray, 5 Wend. 289; Vallance v. King, 3 Barb. 548; 1 Burr. Pr. 456.) The judgment should be reversed.

The judgment was reversed, and the prisoner ordered to be discharged.