text:
    Supreme Court. New York General Term,
    December, 1852.
    Edwards, Mitchell and Roosevelt, Justices.
    The People vs. Joseph Clark. The People vs. James Sullivan.
    The court of last resort in this state is the exclusive judge of its own jurisdiction, and its decision on that point can not be questioned by the court below, when directed to carry into effect a judgment of reversal; but where the jurisdictional question has not been decided by the court of last resort, it is open to examination in the court below.
    A sentence inflicting corporeal punishment can not be pronounced in the absence of the defendant; but the personal presence of the defendant is not necessary where a fine only is imposed.
    On a writ of error brought to reverse a judgment in a capital case, the personal attendance of the defendant on the argument or at the decision in the appellate court, is not necessary to give such court jurisdiction.
    The court of appeals having reversed the judgments rendered by the supreme court in both these cases, the district attorney applied to the supreme court, to issue warrants for the execution of the defendants. The grounds of the motion are sufficiently stated in the opinion of the court.
    JY. B. Blunt (District Attorney), for the people

      J. McKeon, and

      R. H. Morris, for the defendants.
   By the Court,

Mitchell, J. —

The prisoners in both these cases were tried at the Oyer and Terminer and found guilty of murder. The judge who presided at the trial charged the jury as to the meaning of the statute defining murder; the prisoners, by their counsel, excepted to the charge, and a writ of error was brought to this court. This court pronounced the charge of the judge erroneous, and in May last ordered a new trial. In pursuance of a statute passed in the preceding March, a writ of error was brought to review our judgment, and the court of appeals has reversed our judgment and affirmed that of the Oyer and Terminer. During all that time the prisoners have remained in prison, except when they have been brought before the Oyer and Terminer, or this court. They are now brought up before us, pursuant to sections 23 and 24 of 2 R. S. 659, the district attorney insisting that the sentence of death remains in full force, and that no legal reasons exist against the execution of the sentence and calling on the court to issue a warrant for the execution. The prisoners by their counsel insist in opposition to this motion that the order of this court granting a new trial remains in force and assign various reasons all intended to show that the court of appeals had not gained jurisdiction of the case when their decision was made. The prisoners’ counsel very properly refrained from addressing to the court a single argument against the decision of the higher court, on the point on which that court and this differed. If the appellate court had jurisdiction, its decision became the law of the case; and when remitted to the court for execution, became the law and judgment of this court by virtue of the higher authority of that court; and as we would have been bound to enforce obedience by the Oyer and Terminer to the judgment of this court, while it remained unreversed, so are we bound to receive the judgment of the higher court and even to carry its decrees into execution when that court has decided within its jurisdiction, whatever may be our individual opinions. But the question whether the court of appeals liad jurisdiction, was very properly argued before us. It may be admitted that an appellate court, and especially (in the words of Ch. J. Marshal) “ that the court of dernier resort in every state decides upon its own jurisdiction.” (8 Peters, U. S. R. 320.) But in this case, the question now presented, whether in a criminal case where the punishment is to be corporeal, any court has jurisdiction over the prisoner unless he Be brought before it, was never brought before that court, and so that court did not “ decide upon its own jurisdiction in, that respect.” The question, therefore, remains open. Certainly there are cases in which it would be our plain duty to pass on such a question; and if, in any case, we should not hesitate to fulfill that duty, it would be when the law directs us to ascertain whether the sentence of death against two individuals still “ stands in full force,” and whether any “legal reasons exist against the execution of such sentence.” If the act of March 22,1852, giving the court of appeals jurisdiction in such a case had not been passed, then according to its own decision in The People v. Corning (2 Comst. 9), it would have had no jurisdiction, and its decisions would consequently have been of no authority, and it would have been the duty of this court not to carry out its decision so made. If, however, on a professed reexamination of that case, it had recalled that decision, it had the power to do so; but if there were no evidence that it had reexamined it, or professed to pass on the question of its jurisdiction again, the fair inference would be that that question had been overlooked rather than that the court had indirectly reversed its deliberate decision made directly on the point. The supreme court of the United States is, where it has jurisdiction, as much above the court of appeals as that court is above this, yet if the writ of error had issued since the act of 1852, from the United States court to this court, and the United States court had pronounced the same judgment that the court of appeals has, this court would have no right to obey it, as the supreme court can issue its writ of error only in certain cases, and then “ to the highest court of 1 iw or equity of the state in ■which the decision is made,” and not to any but the highest court. Nor would that, the highest tribu nal of the country, disapprove of such a course. In the case of Davis against Packard, that court decided that the judgment of the court for the correction of errors was erroneous, and adjudged that the judgment of the court for the correction of errors in this state be reversed, and that the cause be remanded to the court for the correction of errors with directions to conform its judgment to that opinion. (8 Peters, U. S. Rep. 321.) The court of errors evaded conforming its judgment to that opinion, by announcing in its judgment the opinion of the United States court, and then declaring that the court of errors had no jurisdiction to reverse a decision of our supreme court for an enor in fact, and therefore quashed the writ of error which it had issued, and thus In effect left the erroneous judgment of the supreme court in full force. The United States court recognizing the principle that the court of dernier resort in the state could conclusively judge of its own jurisdiction, yielded to the decision and affirmed this last judgment of the court of errors. By this decision of the highest court of our state, if a decision were needed on that point, there are cases where it has no jurisdiction, and that decision is affirmed by the highest tribunal in the union. To the same effect is the decision of the court of appeals in Oakley v. Aspinwall (2 Comst. 548), where that court vacated its own judgment of reversal, because one member of the court had sat at the argument, who, by law, had no right to sit there on account of being distantly related to one of the parties, although the counsel who moved to vacate the judgment had requested him to sit. It is admitted and proved that the prisoners were at no time before the court of appeals, and the record shows that they appeared there by their counsel. The judgment of the court is that the judgment of the supreme court be reversed and that of the Oyer and Ter-miner in all things affirmed, and that the record be remitted to the supreme court, in order that this court .may direct the sentence of death to be executed. The cases state most decidedly that no corporeal punishment can be lawfully awarded by the .court in the absence of the prisoner. Whether they mean that the judgment awarded in his absence would be erroneous merely, or without jurisdiction, is a material question. In Lofft, 409, the court was informed that the crown was inclined to mercy, and was desired to discharge the prisoner on some corporeal punishment, as he was too poor to pay a fine. They said “ they could not award corporeal punishment in absentem,” and imposed a fine of one shilling. The case of Rex against Harris and against Duke, in 9 William III, is reported in a number of authorities. There the court was called on to pronounce judgment in the absence of the party, after he was outlawed. In Holt, p. 399, C. J. Holt is reported to have said: “ Sir Samuel Astny tells me there never was a writ to the sheriff to take up any man that was at large and to put him in the pillory; therefore, I think we can not give any such judgment in the absence of the party, which can not be executed. If he be in court, we deliver him to the marshal, and an entry is on the roll that the marshal do execution periculo incumbente. And if we were to send him into Somersetshire there .is to be a writ of assistance to the sheriff, but if he came from Newgate hither, then if he be remanded there goes indeed a writ to the sheriff, but then constat de persona.'1 The difficulties here stated are, that there was no writ known after judgment, to bring up the prisoner before the officer who was to execute the judgment, and that if such a writ issued (it not bringing the party into court but before the officer only) the person taken would have no opportunity to show that he was not the one who, by the judgment, was to be punished. These objections would not exist in an appellate court, which was not to cause the sentence to be executed, but to devolve that responsibility on the court below. C. J. Holt added: “I never-knew a judgment for corporeal punishment unless the party were present, except in the case of Mrs. Buckridge, which was irregular.” In the case of Duke, he said: “ Judgment can not be given against any man in his absence, for a corporeal punishment. He must be present when it is done. If a man was outlawed for felony, execution was never awarded against the felon till brought to the bar. There is no precedent of any such entry; for if we give judgment that he should be put in the pillory, it might be demanded when, and the answer would be, when they catch him. And there never was a writ to take a man and put him in the pillory; it is not like to a capias projini, which is to bring him into court to pay the money. A defendant may submit to a fine though absent, if he has a clerk in court that will undertake for the fine.” The opinion is given to the same eifecl in Lord Raym, 267, 1 Satk. 400, and Skinner, 684; Combroback, 447 and 12; More, 156, and section 2, Hawk. pl. cr., ch. 48 and 17, and Barbour’s Criminal Law. The difficulties here stated are of a like character to those before noticed, and do not apply to a court which is not to award the execution, but is merely to order another court to award it. In 1 Salk. 556, Queen v. Templeman, it was again said that when a man is to receive any corporeal punishment, judgment cari not be given against him in his absence, for there is no process to take a man and. put him in the pillory. In Rex v. Hann & Price (3 Burr. 1786), it was agreed that if a fine only was to be imposed, it was in the discretion of the court to give judgment in the absence of the defendants; but otherwise they should be present. And it was said that even if a fine was to be imposed and the case was of a gross nature, the defendants should appear in person for the sake of example, and to prevent the like offences being committed by others, as the notoriety of their being called up to answer criminally for such offences would very much conduce to deter others from venturing to commit the like. These reasons only apply when the sentence is about to be executed Chitty says in his Criminal Law, p. 695: “When any corporeal punishment is to be inflicted on the defendant, it is absolutely necessary that he should be personally before the court at the time of pronouncing the sentence, and he assigns the reasons given in the above cases.” He adds: “And when he is committed to prison, it ought to appear upon the record that he was present at the time of the committal. So when a judgment has been once pronounced on a trial, and execution awarded against him, which is subsequently countermanded, so that he is not put to death at the time specified and part of the ensuing term has elapsed, execution can not afterwards be awarded without bringing him again to the bar in person.” (See, accordingly, Kingsley's Case, quoted by C. J. Hall in Lord Raym., 482, and at p. 700.) “It is now indispensably necessary, even in cler-gyable felonies, that the defendant shall be asked by the clerk if he has anything to say why judgment of death should not be pronounced on him, and it is material that this appear upon the record to have been done, and its omission after judgment in high treason, will ¡be a sufficient ground for the reversal of the attainder.” In 3 More, 265, “ an anonymous case is given where an attainder was reversed on account of this omission in the record,” and this good reason is given for requiring it to be asked, “ that possibly he might have pleaded a pardon.” That advantage, and all others which the prisoner could have, consistently with the legality of the sentence, he can have before the-court which is to award execution, even if he do not appear before the higher court. (Such, also, was the case of Rex v. Spike, 3 Salk, 358; there the omission is called erroneous.) In 2 Hale’s Pleas of the Crown, it is said: “ If A be convicted at Oyer and Terminer of felony, and the record be removed to the King’s Bench by certiorari, .and the prisoner also be removed hither by habeas corpus, the court may give judgment after that conviction, but there must first be a filing of the record in the King’s Bench, and he must be called to say what he can why judgment should not be given against him, and thereupon judgment may be given.” So in Sir Walter Raleigh’s case, C. J., 495, when the execution was extended for three years, he was afterwards brought into court, sentenced and executed. In The People v. Taylor, (3 Denio, 98, note a,) the court being about to impose sentence, the defendant’s counsel objected that it could not be done in thq defendant’s absence. The court said, in substance, that when a corporeal punishment is to be inflicted, then “ the rule is that such a sentence should not be imposed in his absence,” but that if the court meant to impose a fine only, that rule would not apply, although the offence was such that the court in their discretion might fine or imprison.

In The People v. Son, (12 Wend. 348,) Savage, Ch. J., also says that the rule is, that when any corporeal punishment is to be inflicted on the defendant, he must be personally present in court when sentence is pronounced.” And in The People v. Winchill, (7 Cowen, 525,) the court refused to render judgment until the prisoner should be brought into court although he was out on bail. None of these cases have shown what the rule is in the appellate court and they all are consistent with the idea that the defect would be ground only for the writ of error, and not for holding the judgment void. Chitty says, (Cr Law, 751,) that while the writ of error is pending, “ in cases of felonies, the defendant must be in court upon all motions.” He, however, quotes no authority for this, and we find none. The practice in our courts, in this respect, seems not to have been uniform. In the case of Rector, he was brought into court, and so in many other cases. In others, the argument has been without the presence of the prisoner. If the final judgment were in his favor of course he would not object, and if the judgment of the court below were against him, and that were affirmed on his writ of error he could not object. The cases in which the courts have proceeded without the presence of the prisoner are sufficiently numerous to lead to the conclusion that the presence of the prisoner in the higher court was not essential to its jurisdiction, even if his absence would make the proceedings erroneous. And when the highest court of the state gives a judgment which makes void an order for a new trial, and specially and carefully orders the sentence of death to be pronounced, it can hardly be supposed that it was done without that court considering that it had jurisdiction of the person of the prisoners. To obtain jurisdiction over the person, it is generally necessary only to have process served on the party, in due fo»m of law,, giving him such notice of the new action as the court regards as an equivalent to the bringing him into court. That was done in this case, by serving a copy of the writ of error on the prisoner. In other cases, especially in inferior courts, a special statute has sometimes prevented their obtaining jurisdiction unless the party were actually before the court. Such was Bigelow v. Stearns, (19 J R. 39.) In other cases it has been held that, if no process was served on a defendant and he did not appear in court by an attorney, the judgment against him was void. Such was Borden v. Fitch, (15 J. R. 141,) and many others. And it maybe that the express statutory provision, (2 R. S. 735 and 18,) that “no person indicted for any felony can be tried unless he be personally present during such trial,” would make void a trial when the person indicted was not present. But the trial there intended is that which is properly called the trial, namely, that before the jury, as the rest of the title containing that section tends to show.

It is also true that at common law the defendant could not appear by counsel, and that the privilege to appear by counsel, now granted, was not intended to dispense with the prisoner’s personal appearance. But that again does not apply to the appellate court; there, it is believed, counsel could always argue for the accused. Undoubtedly, the presence of the accused may be of great service to suggest to counsel even arguments of law, for self interest often excites an acuteness of perception in the client which the learning of the counsel may have failed to exhibit. That is a fair argument why the prisoner should be present even in those cases, but not an argument to show that without his presence, the appellate court is without jurisdiction.

The statute authorizing the writ of error in behalf of the people was passed March 22d, 1852. A motion was made in the court of appeals to dismiss the writ, on the ground that by the record, as made up for that court, the judgment of this court purported to have been given in February preceding; but it appeared that, although the argument was in February preceding, yet, in fact the judgment was rendered in May, 1852, and that court denied the motion. That decision binds us to regard the writ as applicable to this case. It was also argued, that the act of March 22, 1852, gave the court of appeals power only to review the judgment of the supreme court, and not to reverse or modify it; and it was argued that the appellate court, therefore only had power to review the judgment and state what the law was, and that on the new trial the law thus announced should be declared and acted on. But that court has practically given a different construction to this act by specially directing that the judgment of this court be reversed, and that of the Oyer and Terminer in all things affirmed, and that the record be remitted to this court, “ in order that this court may direct the sentence of death to be executed.” Nothing remains for us in this place, but to execute the law as it is declared by the court of last resort. As when -we reversed the judgment of Oyer and Terminer we would not interfere with the province of the jury by discussing the question whether in fact the prisoners were guilty or not, so now we will not depart from our proper sphere by expressing in this place any opinion as to the correctness of the decision of the higher court. It is our duty to obey it; and we do so.


source: Caselaw Access Project

author: Johnson, J.

license: Public Domain

text:
    Supreme Court. Cayuga General Term,
    June, 1852.

      Selden, Strong and Johnson, Justices.
    The People ex rel. Williams vs. The Court of Sessions of Wayne County.
    Courts of sessions, as authorized under the judiciary act of 1847, have not power to grant new trials.
    Where, in a court of sessions, the defendant had been found guilty of arson in the third degree, and the court granted a new trial upon the merits, and refused to pass sentence according to the verdict, it was held that the granting of a new trial was a nullity, and a mandamus was awarded to compel the court to proceed and pass sentence.

      Semble, that a court of Oyer and Terminer has power to grant new trials. Per Johnson, J.
    This was an application for a mandamus to compel the court of sessions to proceed to the sentence of William Case, who was convicted in said court, of arson in the third degree. The court on motion of the defendant granted a new trial upon the merits and refused to pass sentence according to the verdict.

      S. K. Williams, (Dist. Att’.y,) for the People.

      Jas. E. Smith, for the defendant.
   By the Court,

Johnson, J.

Courts of Sessions, as organized under ihe judiciary act of 1847, are courts of limited and inferior jurisdiction, having no powers, except such as are conferred by statute, like the former courts of general sessions of the peace. In the case of The People v. The Justicee of the Sesssions of the County of Chenango, (1 Johns. Cas. 180; S. C., 2 Caines’ Cas. in Error, 319,) it was held that the court of general sessions of the peace had no power to grant a new trial in criminal cases upon the merits.

This was put expressly on the ground that the court was a court of limited and inferior powers, incapable of doing any act or of exercising any authority beyond the express grant of the statute. It was said in that case that no inferior jurisdiction can possess this power of granting new trials without an express authority.

The same judges held in The People v. Townsend, (1 Johns. Cas. 104,) that courts of Oyer and Terminer may grant new trials. There seems to be considerable conflict in the decisions in this state, as to the power of courts of Oyer and Terminer to grant new trials upon the merits. (The People v. Stone, 5 Wend. 39; The People v. Comstock, 8 Wend. 549; The People v. The Judges of the Dutchess Oyer and Terminer, 2 Barb. S. C. 282.) But there is no conflict as to the power of courts of sessions. The rule laid down in The People v. The Justices of Chenango, has been, as we think, universally acquiesced in, and is the settled law of this state. Courts of Oyer and Terminer have full criminal jurisdiction and are the only courts in the state having such powers. And there are strong reasons in favor of the exercise of this power by the court of Oyer and Terminer, which do not apply to criminal courts of inferior jurisdiction. This question of the power of courts of Oyer and Terminer can not be regarded is being definitely settled, and we are inclined to think the better opinion is that courts of Oyer and Terminer are clothed with this power and that the true difference in the power of the two courts in this respect, is that of full jurisdiction in the one, and qualified and restricted powers in the other.

The court of sessions should have proceeded to pass sentence in pursuance of the conviction and their award of a new trial was a nullity.

A mandamus must, therefore, be awarded.


author: W. F. Allen, J.

text:
    Supreme Court. Onondaga General Term,
    October, 1852.

      W. F. Mien, Hubbard and Pratt, Justices.
    The People vs. Alanson McIntyre.
    Where two or more persons are jointly indicted for felony, and demand separate trials, they have not a right to elect which defendant shall be tried first.
    The order of t’na trials in such case is within the control of the district attorney, subject to the direction of the court; and as a general rule, the court should not interfere to compel the district attorney in regard to it.
    The decision of the court, refusing to direct the district attorney in such case, is not the subject of review upon exception.
    On a separate trial of a defendant jointly indicted with a codefendant for felony, such defendant can not improve his codefendant as a witness in his behalf. Such codefendant is not a competent witness for the defendant on trial till discharged from the. record by nolle prosequi, acquittal or otherwise.
    The defendant and Carrington McIntyre were jointly indicted in the Madison county sessions for burglary and larceny and demanded separate trials, and that Carrington McIntyre should be first tried. A separate trial was granted, but the court refused to compel the district attorney to try McIntyre first; to which refusal the defendant, excepted. Upon the trial of the defendant, his codefendant on the indictment was offered as a witness in his behalf, and was objected to on the ground that he was jointly indicted with the defendant. The objection was sustained and the witness excluded. The defendant was convicted and brings error to this court.

      D. Brown, for defendant.

      W. E. Lansing, (Dist. Att’y), for the People.
   By the Court,

W. F. Allen, J.

It was a matter addressed to the sound discretion of the court below whether they would interfere with the order of trial of the persons indicted. The statute secures to persons jointly indicted for a felony the right of separate trials, but does not give to them the right to regulate the time or order of such trials. The public prosecutor controls and directs on these matters, subject to the direction of the court in cases calling for interference. It can not be assumed by any court, and certainly not by a court of review, that the grand jury have found an indictment without sufficient evidence or from improper motives, or that the public prosecutor has unworthily procured an indictment against an innocent individual and delays the trial, in order to deprive another person indicted for the same offence of the benefit of his testimony. If a case of that kind should be brought to the knowledge of the court, it can not be doubted that measures would be taken to secure to the persons indicted their just rights and fair trials But even in such case the order of the court would not be the subject of review upon exceptions. (People v. Colt, 3 Hill, 432.)

The decision of the court excluding the codefendant as a witness for the defendant upon the trial is properly the subject of review upon error. The statute provides that when two or more defendants shall be jointly indicted for any felony, anyone defendant requiring it, shall be tried separately. (2 R. S. 735, § 20.) Previous to this statute, persons jointly indicted for offences entitling them to peremptory challenges were entitled of right to separate trials, and a separate trial of persons jointly indicted might in all cases be had in the discretion of the court. The statute therefore restricts the discretion of the court in granting or withholding' separate trials to indictments for of-fences less than felony, but does not affect the rights of the parties or the rules of evidence, in cases where separate trials are had either as a matter of right, or by direction of the court where the right is not absolute. The statute was enacted to conform the practice to the opinion of the court in The People v. Barber (7 Cowen, 108; Revisers’ Notes, 3 R. S. 849). The right to a separate trial by no means determines the right of one defendant to improve his codefendant as a witness in his behalf. This can only be done by discharging him from the record; as by the entry of a nolle prosequi, or by an order for his dismissal and discharge, or by a verdict of acquittal, where no evidence or no sufficient evidence has been adduced against him. (1 Greenl. Ev. § 363; Roscoe Cr. Ev. 1412; 2 Russ. on Cr. 968, 969; State v. Moony, 1 Yerger, 451; Commonwealth v. Marsh, 10 Pick. 57; People v. Bell, 10 John. R 95; People v. Williams, 19 W. R. 377). The rule is too well established to be disturbed by this court, and the reasons assigned for it are satisfactory. The rights of individuals charged with crime are not endangered by the rule. The defendants jointly indicted may, at their option, be jointly tried; and if upon the trial there shall be no evidence, or but slight evidence, against one of the parties indicted, he may be discharged or his case submitted to and passed upon by the jury to enable the other defendants to call him as a witness.

The provisions of the code have no application to criminal proceedings.

The judgment of the court below is affirmed.


author: Parker, J. —

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

      Watson, Parker and Harris, Justices.
    Jonas H. Miller vs. George I. Finkle.
    The statute requiring the court to limit the time of sentence of a convict, so that his imprisonment in the state prison shall expire between March anti November, is merely directory, and a failure to comply with such requirement does not render the sentence void.
    If, by inadvertence in passing sentence, a requirement of the statute has been overlooked, the court may correct the judgment at the same term and before the sheriff has proceeded to execute it. Such correction may be made by expunging or vacating the first sentence and passing a new sentence.
    The disqualification consequent upon a sentence by which all the civil rights of the person sentenced are suspended, commences as does the running of the time of imprisonment, from the moment of passing sentence.
    The effect of vacating a sentence and pronouncing a new sentence at the same term, is the same upon the civil rights of the defendant, as if the first judgment had been reversed on error, and the defendant had been again convicted on a second trial.
    Where a defendant was sentenced, so that his term of imprisonment in the state prison would expire in December, and afterwards, at the same term, the sentence was vacated and a new sentence was pronounced for a shorter term, but so that it would expire in October, and the defendant after the first, sentence and before the second séntence, executed an assignment of his book accounts to another person, it was held that such assignment was valid.
    This was an appeal from the county eourt of the county of Columbia. The action was brought originally in a justice’s court to recover upon a note for $50 and interest.
    The defendant in his answer claimed the right to set off against the plaintiff’s demand certain balances of account, which the plaintiff had formerly owed to Peter Finkle and Calvin Finkle, and which had been assigned to the defendant before suit brought. The plaintiff recovered before the justice and the defendant appealed to the Columbia county court where the cause was referred to Darius Peck, Esq., as referee, who reported nothing due to the plaintiff, and the county court on motion refused to set aside the report.
    On the trial before the referee, it appeared that said Calvin and Peter Finkle were, on the 18th day of June, 1847, tried before the court of General Sessions of Columbia County and convicted of a felony, and on the day last aforesaid, were severally sentenced to imprisonment in the state prison for three ye-ars and six months. This sentence was entered in the minutes of the court. On the next day, that is to say, on the 19th-day of June, 1847, the clerk by directions of the court made an entry in the minutes immediately below the sentence aforesaid, expunging said sentence and thereupon proceeded to sentence said Calvin and Peter Finkle anew, for the term of three years and four months, which last sentence was entered by the clerk; and under a certified copy thereof said Calvin and Peter Finkle were taken by the sheriff to the state prison. The correcting of the sentence was made in consequence of the court discovering that the imprisonment under the sentence as at first pronounced would not terminate at the season of the year prescribed by law.
    On the 19th day of June, 1847, after the first sentence and before it was altered, Calvin and Peter Finkle made the assignments of their accounts to the defendant; and the question presented was, whether the civil rights of Calvin and Peter Finkle were suspended at that time, so as to vitiate such assignments.

      E. P. Cowles, for plaintiff.

      Theo. Miller, for defendant.
   By the Court,

Parker, J. —

It was provided by the statute of 1836 (Laws of 1836, page 230, §6), that in cases where convicts shall be sentenced to be imprisoned in the state prison for a longer period than two years, “ the court before whom the conviction shall be had shall so limit the time of sentence, that it will expire between the month of March and the month of November, unless the exact period of the sentence may be fixed by law.” The sentence pronounced against Calvin and Peter Finkle was not in accordance with this requirement. It was a sentence for two years and six months, and under it, the imprisonment would have terminated in December. The defendant’s counsel argues that the sentence was therefore void. But that position is not tenable. The statute is merely directory. There was no want of jurisdiction. The time for which they were sentenced was within the limit prescribed by the act for the punishment of the offence. The sentence of the 18th June, therefore, notwithstanding the neglect to comply with the requirement of the act of 1836, was binding and operative, unless it was rendered otherwise by the subsequent proceedings.

On the 19th day of June, the court having discovered the error, ordered the sentence, which, had been pronounced on the day preceding, to be expunged, and the order was entered accordingly. The court then proceeded to sentence the prisoners to an imprisonment of two years and four months, a certified copy of which last sentence was delivered to the sheriff, under which they were imprisoned in the state prison. This proceeding was in effect vacating the judgment first pronounced; and it is necessary to consider whether the court had power to do so and what was its legal effect upon the transaction in question.

The courts certainly have not the power to pardon. That is vested by the constitution exclusively in the governor. But courts have power over their own records and judgments, which may be exercised in certain cases and to a certain extent. This by no means infringes upon the power of pardon. The courts can not forgive or remit, or absolve from the consequences of a criminal judgment. But they may see that the judgment itself is in conformity to law. Thus, they may reverse on error, or review on certiorari. If, by inadvertence in pronouncing a sentence, a requirement of the statute has been overlooked, it may be corrected by the same tribunal, before further action is taken.

I think it a safe rule to lay down, that a court of criminal jurisdiction may vacate or modify a judgment at the same term at which it is pronounced, and before the sheriff has proceeded to execute it. c

In King v. Price et al. (6 East R. 322), the defendants had been convicted of perjury and sentenced to imprisonment for one month and transported heyond seas seven years. After-wards, at the same term, the court vacated the judgment (which Lord Ellenborough observed might be done at any time within the said term), and passed a different sentence, viz.: that each should pay £20, and be imprisoned in Newgate six months and be afterwards transported for six years. The correctness of such a practice was also recognized by the king’s bench in King v. Justices of Leicestershire (1 Maul. & Selw. 442), and have been acted on in other cases. (1 Chitty’s Cr. L. 772.)

I think the court therefore had the right to expunge or vacate the first sentence, and to pass a new sentence; that the first sentence became void and inoperative, and the second sentence a valid and binding judgment: as much so as if the first sentence had been reversed on error, and the second sentence had been pronounced after a conviction upon a second trial.

The next question to be considered is, what was the effect of the first Sentence upon the assignments to the defendant? At the time these assignments were executed, the first sentence was in full force. The statute provides (2 R. S. 701, § 19), that “ a sentence of imprisonment in the state prison for any term less than for life suspends all the civil rights of the person so sentenced, and forfeits all public offices and all private trusts, authority or power, during the term of such imprisonment.” This disqualification commences, as does the running of the time of the imprisonment, from the moment of passing sentence. If, therefore, the sentence had not been vacated, the assignments would have been void, the assignors being incompetent to execute such instruments.

But what was the effect of the vacating of the sentence? I think it was precisely the same as if the sentence had been reversed on writ of error. When a judgment is reversed, all proceedings and sales under and by virtue of it are void at common law (6 Cowen R. 297; 8 Paige, 143, 9 do. 635), and it has been deemed necessary to provide by statute (2 R. S 375, sec. 68), that in cases, where the title to real estate which shall have been sold under a judgment shall fail in consequence of such judgment having been vacated or reversed, the purchaser shall have his action against the party for whose benefit the real estate was sold to recover the amount paid on the purchase thereof with interest. This enactment was necessary for the protection of the purchaser, for the reason that the proceedings were void.

The vacating of the sentence rendered it inoperative from the time it was pronounced, so that it could not invalidate the assignments in question.

I think, therefore, the setoff was properly allowed, and that the judgment of the county court should be affirmed.

Judgment affirmed»


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

      Watson, Parker and Wright, Justices.
    James Gahagan pl’ff in error vs. The People def’ts in error.
    On the trial of an indictment for bigamy, the confessions of the defendant, though supported by proof of cohabitation and reputation, are not sufficient to establish the first marriage: proof of actual marriage, either by the record or by the evidence of an eye witness, is requisite.
    This cause- came up on writ of error to the court of sessions of the county of Albany. The defendant was indicted in that court for bigamy, as follows:
    The jurors, &c., &c., do present:
    That James Gahagan, late of the town of Watervliet, in the county of Albany, aforesaid, on the first day of January, in the year of our Lord one thousand eight hundred and fifty-two, at the parish of Dumklief, in the town of Kearney and county of Sligo, in Ireland, in the kingdom of Great Britain, did marry one Bridget McCarty, and her the said Bridget McCarty did then and there have for his wife, and that the said James Ga-hagan afterwards, viz., on the first day of July, in the year of our Lord one thousand eight hundred and fifty-two, with force and arms, at the town of Watervliet, in the county of Albany, feloniously did marry and take as his wife, one Rebecca S. Noice, and to the said Rebecca Noice, was then and there married, (the said Bridget McCarty being then and there living and in full life,) 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 defendant having pleaded not guilty, the issue came on for trial before said court, on the fourteenth day of December, 1852.
    To maintain the issue on the part of the people, Catharine McCarty was called as a witness and testified: That she was at home at the parish of Dumklief, town of Kearney, in the county of Sligo, Ireland, when the prisoner and the sister of the witness, Bridget McCarty, came in on one Friday night, at the house of witness’s mother, and said they were going to get married, and went to get married. That, when they came back, they said they had been married by a priest, whose name they mentioned, but that she had forgotten what the name was. That the prisoner and said Bridget lived together after that as man and wife. That they had one child in Ireland and five in this country; that the name of the child born in Ireland is Ellen and that she is now in this country. That the prisoner and said Bridget have lived together in Whitehall in this state, and that said Bridget was then in the almshouse in Washington county.
    On cross-examination, the witness said she was nineteen years of age; had been six or seven years in this country; had heard that her sister Bridget was still living, but had not seen her in three or four years; that she knew she was living, and had heard from her two months previously' by way of a man coming from Whitehall; that she sent for some money by him.
    The counsel for the prisoner, in due time, objected to the admission of each and every part, separately, of the evidenoe of Catharine McCarty, on the grounds:

      1. That, in order to prove the first marriage in a case of bigamy, it was necessary to produce the marriage record, or a certified copy thereof, or some one present at the marriage ceremony.
    2. That the declarations and admissions of the prisoner of the first marriage and evidence of cohabitation with the first wife are incompetent and inadmissible to prove the first marriage.
    3. That the declarations and admissions of prisoner do not dispense with the production of the record.
    Which objections were overruled by the court, and the evidence allowed, and defendant’s counsel duly excepted.

      Thomas B. Bicharás, being called on the part of the people, and duly sworn, said: “I am one of the constables of West Troy; I know the prisoner; I arrested the prisoner. Prisoner told me he was married to Bridget McCarty. I know Bridget McCarty; I saw her in Washington county poorhouse, in Argyle, about three or four weeks ago. Prisoner told me he had a wife there; prisoner told me he had another wife at Whitehall, in the poorhouse. He did not tell me in what country he married her.”
    The evidence of Thomas B. Richards was also, in due time, objected to, in each and every particular separately, by counsel for prisoner, on the grounds:
    That the admission and confession of prisoner were incompetent and inadmissible to prove the first marriage.
    The objection was overruled by the court, and the evidence received, and defendant’s counsel duly excepted.

      John W. Burns, being called on the part of the people, and being duly sworn, said: “ I am a justice of the peace, living at West Troy; I married the prisoner to one Rebecca Sophia Noice, in December last, in William Van Olinda’s office; Van Olinda was present and signed certificate.
    The evidence of John W. Burns, to prove second marriage, was also, in due time, objected to by counsel for prisoner, on. the grounds:

      1. That the prior marriage had not been sufficiently and legally proved, as charged in the indictment.

      2. That the first marriage had not been proved to have been solemnized in due form of law.
    The court overruled the objections aforesaid, and held that the question as to whether the first marriage had been sufficiently proved, was a question of fact for the jury.
    To which rulings of the court, the counsel for the prisoner then and there duly excepted.
    Th-e counsel for the people, farther to maintain the issue on the part of the people, called, as a witness,

      Nicholas Hallenbeclc, who, being duly sworn, said: “ I am the jailor of Albany county; prisoner sent this letter; it was given to me by the prisoner, requesting that I should send it to his wife.”
    The counsel for the prisoner objected to the introduction of this letter, as evidence, on the grounds:
    That the acknowledgments and confessions or declarations of prisoner are incompetent and inadmissible.
    The court overruled the objection and admitted the evidence. To which ruling of the court, prisoner’s counsel duly excepted.
    The district attorney then read the said letter to the court and jury, in which letter the defendant admitted he was the husband of said Bridget, to whom it was addressed, and to whom he excused his getting married the second time on the ground that he was drunk. The letter was dated twenty-seventh November, 1852, and was directed to Bridget Gahagan, care of Mr. Hopkins, Argyle, Washington county.
    The cause was then rested on the part of the people, and the counsel for the prisoner moved that the court discharge the prisoner on the grounds:
    1. That the evidence was not sufficient to go to the jury.
    2. That there was a variance as to the time of the alleged first marriage set forth in the indictment and the proof thereof.
    The court refused to discharge the prisoner, and held the evidence sufficient for the consideration of the jury.
    No evidence was offered on the part of the prisoner, and the court thereupon'charged the jury as follows:
    That, before the jury could convict the prisoner, they must be satisfied that the prisoner was married to Bridget McCarty in Ireland, as charged in the indictment, and that such marriage was a lawful one, according to the laws of that country; that to establish such fact, the jury might take into consideration the statements made by the prisoner on the several occasions referred to by the witnesses, together with the letter written by the prisoner after his confinement on the charge; that when the first marriage takes place in a foreign country, the defendant’s confession is evidence to go to the jury to prove the same, but that the jury must be clearly satisfied that such confession proves the fact of such marriage, before they will be warranted in convicting, provided a second marriage be proved.
    That the jury must also be satisfied that the second marriage has been legally proved, and that the first wife was living at its consummation. There would seem to be no question upon these points, if the people’s witnesses -were to be credited; however, that was a question for the jury.
    The defendant’s counsel requested the court to charge the jury that the evidence on the part of the people was merely presumptive of a marriage in fact, as it regarded the first marriage, and that it did not prove an actual marriage; and that in order to prove the first marriage, it was necessary to produce the record of the marriage or a certified copy thereof, or some one present at the marriage ceremony; and that the confessions or declarations of the prisoner, and cohabitation with his first wife, were merely presumptive of a marriage in fact.
    The court declined so to charge, and held the evidence proper for the consideration of the jury; and prisoner’s counsel excepted thereto and to each and every part of the charge as above set forth.
    The jury found the prisoner guilty, and he was sentenced to imprisonment in the state prison at Auburn, for the term of four years and nine months.

      J. Jl. Bloomingdale, for the prisoner,
    made the following points;

      I. It is necessary to prove the prior marriage in a case of bigamy by direct and positive proof. (1 Russ on Cr. 186 and note; 15 Mass. 163; 3 Star/cie Ev. 893; 2 do. 781.)
    II. The declarations or admissions of defendant of his first marriage and evidence of cohabitation with first wife, are inadmissible to prove the same. (4 Comst. 230, 246; 4 Johns. 51; 6 Conn. R. 446; Swift’s Ev. 140; Swift’s Dig. 501; 19 Maine, 155; 7 Johns. 314.)
    Ill It is necessary to show that the foreign marriage was solemnized in due form of law. (10 East. 282.) \The law will not presume a valid marriage as in civil cases. (Russ. Sr Ry. c.c. 109; 1 Phill.257; Jacobs’ Cases, 1; Moody, c. c. 109.)
    IV. That the identity of the first wdfe must be proved by some one present at the marriage ceremony. (9 Mass. Rep. 449; 8 Greenl. R. 75.)
    V. The evidence of the first marriage is not sufficient to. convict.

      T. C. Sears, for the people,
    claimed that the declarations given in evidence were admissible and sufficient, and cited T East. P. C. 470; 1 Car. Sr Kir. 164; 2 Cow. ‡ Hill’s Motes, 1148; 1 Ashmead, 272; 16 Ohio R. 173; 3 Rich. R. 434; 11 Maine, 391; 8 Serg. Sr Rawl. 159.)
   By the Court,

Parker, J. —

The rule is not controverted as laid down in Kent (2 Kent’s Com. 53) and in other elementary writers, that marriage may be inferred from continual cohabitation and reputation as husband and wife, except in cases of civil actions for adultery or in public prosecutions for bigamy and adultery, when actual proof of the marriage is required. But it is contended that the admissions of the defendant are of such a positive character as to be properly received to establish his marriage, even in the cases above excepted, and the decisions have been conflicting upon the questions, whether such declarations are admissible, and if so, whether they are sufficient, when deliberately made, to establish the fact of marriage.

In Maine such evidence has been received. Cayford’s case (7 Greenl. 57) was an indictment for lewd and lascivious co. habitation, and confessions of having been married in England were received as sufficient proof of the fact; and in Ham’s case (2 Fairf. 391) it was held, that on the trial of one indicted for bigamy, adultery, or lascivious cohabitation, the marriage, whether solemnized in that state or otherwise, might be proved by the deliberate confession of the defendant. Both these cases are cited and approved in The State v. Hodgkins (19 Maine R. 155.)

The same doctrine was held in Pennsylvania, in Murtagh’s case, (1 Ashmead, 272,) which was an indictment for bigamy, and in Forney v. Hallacher, (8 Serg. & Rawle, 159,) which was an action for crim. con.; and in Virginia, in Warner’s case, (2 Virg. cases, 95,) which was an indictment for bigamy — in South Carolina, in Britton’s case, (4 McCord, 256,) and Hilton’s case, (3 Rich. R. 434,) both of which were indictments for bigamy — in Ohio, in Wolverton’s case, (16 Ohio, 173,) which was also an indictment for bigamy. In Regina v. Simmonsto, (1 Carr. & Kirwan, 167; 47 Eng. Com. Law,) which was also an indictment for bigamy, it was held in England that the first marriage might be proven by the admissions of the prisoner.

A different rule is well established in other states. In Massachusetts, such evidence is held to be insufficient. In the case "of The Commonwealth v. Simeon Littlejohn and Margery Barbarick, (15 Mass. R. 163,) indicted for lewdly and lasciviously . associating and cohabiting together, the latter being alleged to be the wife of Thomas Barbarick, a sister of said Thomas testified that about twelve years previous, said Thomas and Margery left the house of the witness for the declared purpose of going to the house of a clergyman, about two miles distant, in order to be by him joined in marriage; that after an absence sufficient for that purpose they returned, declaring that they were married, and that they lived together as man and wife, having several children, until a year previous to the trial. The jury found the defendant guilty, but it was resolved by the whole court that the evidence was insufficient; that it was not the best of which the case admitted; that if those persons were married, it could be proved by the record of Ihe clergyman, or, at any rate, by the testimony of persons actually present and the \ erdict was set aside. The evidence introduced to prove marriage in that case was very much like that in the case before us.

It was decided in the state of Connecticut, in Roswell’s case (6 Conn. R. 446), which was an information for incest alleged to have been committed by the prisoner with his legitimate daughter, that an actual marriage between the prisoner and such daughter’s mother must be proved; and that, for that purpose, neither cohabitation, reputation, nor the confessions of the prisoner were admissible. In that case, the subject was very fully and carefully examined, in the opinion of the court. See also Swift’s Ev. 140; Swift’s Dig. 501, for the law in that state.

In this state, as early as 4 Johns. Rep. 51, it was held in Fenton v. Reed, that strict proof of actual marriage was only .required in cases of bigamy and in actions for criminal conversation; and that in other cases, marriage might be proved from cohabitation, reputation, acknowledgment of the parties, reception in the family, and other circumstances from which a marriage might be inferred.

In The People v. Humphrey, (7 Johns. R. 314), the question came directly before the supreme court in an indictment for bigamy. The prisoner had been found guilty on his voluntary acknowledgment of his former marriage. But the court held it insufficient evidence, citing Morris v. Miller, (4 Burr. 2056,) where Lord Mansfield held, that in prosecutions for bigamy, as well as in actions for crim. con., a marriage in fact must be proved, and Birt v. Barlow (Doug. 171.)

The correctness of this rule is recognized in the opinions delivered in the late case of Clayton v. Wardell (4 Comst. Rep. 230.)

Whatever, therefore, may be the rule of evidence in other states, I think we are bound in this state by the decision in The People v. Humphrey, which is directly in point.

In one respect the decisions agree, viz., that public prosecutions for bigamy, incest and adultery, and the single civil action for crim. con., all stand, on the same footing, and are governed by the same rule of evidence. If admissions are adequate evidence in one, they are in all of these cases.

It has not been decided in this state, that confessions of the marriage are not admissible, but that they are insufficient to prove the fact. I do not see upon what principle they can be excluded, and though insufficient of themselves to prove marriage, even when aided by proof of cohabitation and reputation, yet they may be important evidence, and I think they are in all cases competent. They corroborate tbe positive evidence of an eye witness to the marriage. They strengthen the proof of the identity of the parties, or of the clergyman or officei officiating; and they add to the weight and certainty of the proof whether the marriage be proved by the record or by one present. It is the right, I think, of the party prosecuting, to avail himself of the statements voluntarily made by tbe defendant, as to any material fact in issue. But it is competent foi the court, in its vigilant care for the rights of a party, to require the highest and most satisfactory evidence of the fact in issue, especially in a criminal prosecution. In questions of title to land the parol admission of a party is not sufficient to show he has parted with real property. The law exacts the better and higher evidence of a deed. And it is always competent, and no violation of principle, for the law to prescribe what kind of evidence shall be required to establish a fact.

I see no reason for making a distinction between cases of marriage in a foreign country and marriage in this state. A careful examination of the decisions shows that none has really been recognized. The fact is equally important to the defendant, whether alleged to have taken place here or in a foreign country, and calls for the same grade of evidence The same kind of evidence is required to prove the signature to a note executed in Ireland as if it were executed in this state, and so of every other fact necessary to be established on a trial. The peril of the defendant should not be increased, because of the difficulty of obtaining proof. That is a misfortune that should fall on the prosecution, if upon either party.

I think the court below erred in holding that there was sufficient proof of the first marriage to submit the question to the jury, and that, for that reason, the judgment of the sessions should be reversed and a new trial awarded.

Judgment reversed.


author: T. R. Strong, J. —

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

      Sel,dent Johnson and T. R. Strong, Justices.
    The People vs. Michael McGinnis.
    An action for a divorce for adultery was under the Code of 1851, referrible.
    It is not necessary to a valid reference of an action, that the parties, or their attorneys subscribe a writing consenting to the reference; it is sufficient, if an order of reference is entered with their assent in open court; that is a “ written consent.”
    A written consent? may be waived by appearing before the referee and participating in the proceedings on the trial.
    An order of the court, on motion of the defendant’s attorney, that the plaintiff pay a sum of money for costs and alimony, “on condition that the defendant’s attorney stipulate with the plaintiff’s attorney to refer the whole issues in the action,” &e., where the stipulation is given and the parties proceed to trial before the referee, is a sufficient reference of the action.
    A variance between an indictment for perjury on a trial before a referee and the evidence, in regard to the person before whom the referee was sworn, is immaterial. The allegations and proof, as to the taking of an oath by the referee are superfluous; he acquired jurisdiction by the order of reference duly made.
    The answer of a witness on cross-examination, to an inquiry, the subject, of which is purely collateral to the issue, is conclusive.
    Indictment for perjury, tried at the sessions in Monroe County, in January, 1852. The indictment set forth, that one James Kane commenced an action against Catharine Kane, his wife,' for a divorce for adultery; that she put in an answer to the complaint, and among other things alleged- that the plaintiff had committed adultery with one Ann Golden, which allegation was denied in the reply; that in October, 1851, the action was referred to Isaac It. Elwood, Esq., to hear and decide the same; that afterwards, and before he proceeded to take any testimony in the action, “ the said Isaac R. Elwood personally appeared before Samuel L. Selden, then and there one of the justices of the supreme court of the State of New York, and duly empowered and authorized to administer oaths in that behalf, and by and before the said Addison Gardiner, so being such judge, and duly empowered to administer such oath, was sworn and took his corporal oath faithfully and fairly to hear and examine the said cause,” &c.; that the referee proceeded to the hearing and trial of the issues, and that upon the trial, the defendant was sworn and examined as a witness, and committed the offence of perjury, in testifying to the adultery of the plaintiff charged in the answer.
    On the trial of the indictment, the district attorney proved, that a motion was made in the action in the supreme court, on the behalf of the defendant, for costs and alimony, that the order was thereupon made by the court hereinafter set forth, and that the stipulation hereinafter set forth was given by the defendant’s attorney and the plaintiff’s attorney, in pursuance of the said order. The district attorney then offered to read in evidence a stipulation in the following words:

      Supreme Court. — James Kane agt. Catharine Kane. — I hereby stipulate that this case be referred to Isaac R. Elwood. Esq., C, Jordan, attorney, for defendant. And also a rule of court, made and entered October 13, 1851, as follows:

      James Kane agt. Catharine Kane.— C. Jordan, defendant’s attorney. Ordered, on motion of Mr. Jordan, attorney for the defendant in this action, that the plaintiff pay the attorney of the defendant thirty dollars, for defence of this action, and to the defendant one dollar and fifty cents each and every week, commencing on the 13th day of October, 1851, for her support and maintenance, until a final decree .in this action, or further order of this court, on condition that the defendant’s attorney stipulate with the plaintiff’s attorney, to refer the whole issues in this action to Isaac R. Elwood, Esq., and in that case the plaintiff is to pay the referee’s fees, and fees of the defendant’s witnesses upon the reference, and that the plaintiff be not allowed to bring this action to trial until the sum of $50 be paid to defendant’s attorney.” The counsel for the defendant objected to proof of the stipulation and rule, but the court overruled the objection and the exception was taken.
    Isaac R. Elwood, was sworn as a witness for the people and the district attorney offered to show by him what took place on said reference. The counsel for the defendant objected to the testimony, 1st. That it was not a referrible cause. 2d. That the cause had not been referred by the written consent of the parties. The court overruled the objection, and the counsel for the defendant excepted. The witness said that he acted as a referee, that he was sworn before Judge Selden, that Judge Gardiner was not at home The counsel for the defendant thereupon objected to the evidence, and moved that the defendant be discharged, on the ground of variance between the indictment and the proof. The court overruled the objection and received the evidence, and refused to discharge the defendant, to which decision the counsel for the defendant then and there excepted. James Kane, and Ann Golden, were sworn as witnesses, and testified that Kane never committed adultery with her. On the cross-examination of the last witness, many questions were put to her as to her intimacy with Kane, which were answered in the negative. She proceeded, I pay Kane three shillings per week for rent of the room. Kane told me to order James McDermott out of my house, and if he did not go to send for him. I never asked McDermott to come to my house. I never got a penny from McDermott for any purpose. On the part of the defendant, there was testimony of one witness, that corroborated the testimony of defendant before the referee, and also testimony on the part of the people conflicting therewith, and confirming the testimony of Kane and Golden. The defendant offeréd to show that Ann Golden had said, that McDermott did give her fifty cents. This testimony was objected to by the district attorney, and excluded by the court, on the ground that the question on that subject to Ann Golden was immaterial, and her answer must be taken as true, to which decision the counsel for the defendant excepted, The defendant was found guilty, and a bill of exceptions was sealed, which was brought into this court by certiorari.

      W S. Bishop, for defendant.

      M. S. JYewton (Dist. Att’y), for the people.
   By the Court,

T. R. Strong, J. —

I am satisfied that the action for a divorce was referrible. (Code of 1851, sections 253, 254, 270.) By §253, it was provided that “whenever in an action for the recovery of money only, or of specific real or personal property, there shall be an issue of fact, it must be tried by a jury, unless a jury trial be waived, as provided in section 266, or a reference be ordered, as provided in sections 270 and 271.” Section 254 declares that, “ every other issue is triable by the court, which, however, may order the whole issue, or any specific questions of fact involved therein, to be tried by a jury; or may refer it as provided in sections 270 and 271.” By § 270, all or any of the issues in the action, whether of fact or of law or both, may be referred, upon the written consent of the parties.” The action was clearly embraced within the last two sections.

It was not necessary to a valid reference of the action, that the plaintiff, or his attorney, should subscribe the stipulation given by the attorney of the defendant in the action, or any writing consenting to a reference; it was sufficient if the plaintiffs attorney assented in open court to the order of reference If the order was entered with his assent, it was a written consent of his to the reference. It is not expressly stated in the bill of exceptions, that the plaintiff’s attorney was present and assented to the order when made, but it is stated that the stipulation of the defendant’s attorney was given to him, from which and the terms of the order, it is apparent that the reference was asked for by him. A written consent might also be waived, by appearing before the referee, and participating in the proceedings on the trial. It is not stated in the bill, in terms, that the plaintiff’s attorney did appear and take part in the trial, but it is fairly to be inferred from the statements therein in respect to the trial, and the fact that he testified in the present case what was sworn to by the defendant on the trial before the referee.

The order of reference is informal. It does not expressly refer, or direct a reference of the action, but I think it sufficiently shows the assent of the court to a reference to the referee named therein, and that it was intended thereby to refer the action, provided the defendant’s attorney should give such a stipulation as was given by him.

In regard to the objection of variance between the indictment and the evidence, in respect to the person before whom the referee was sworn, it is a sufficient answer to it, that it was not necessary to allege or prove anything on that subject. (Howard v. Sexton, 4 Comstock R. 157.) Assuming that the provision of the revised statutes, requiring a referee to be sworn before proceeding to hear any testimony (2 R. S. 384, § 44), was applicable to the case, as it probably was, the oath was not necessary to confer jurisdiction to try the action. The referee acquired jurisdiction by. the order of reference, duly made; the omission of the oath would have been an irregularity merely, and the subject only of a motion. Regarding the allegations and proof, in regard to the taking of the oath by the refere'e, as superfluous, no prejudice could result to the defendant from the variance, and it must be overlooked. (2 R. S. 728, § 52; The People v. Treadway, 3 Barb. S. C. R. 470, and cases cited.)

The court properly excluded the proof offered on the part of the defendant, to show that Ann Golden had said that McDer-mott did give the fifty cents. It does not appear by the bill of exceptions that she had testified that she had not said so, or that any question was put to her as to whether she had so stated, but if the inquiry had been made of her and she had testified that she had not made such a statement to McDermott, evidence to contradict her in that respect would not have been admissible. The subject of the inquiry would have been purely collateral and the answer of the witness would have been conclusive. (Howard v. The City Fire Ins. Co. 4 Denio R. 502; Harris v. Wilson, 7 Wend. R. 57.)

These views dispose of all the exceptions which were relied on upon the argument; the other exceptions taken at the trial were abandoned, and properly so, as it is manifest that neithe) of them is tenable.

New trial denied.


author: Parker, J.,

text:
    Columbia Circuit.
    April, 1853.
    Before Parker, Justice.
    The People vs. Edward M. Derby.
    A recognizance, conditioned for the appearance of M at the next court of sessions, to be held at the court house in the city of H, to be tried by a jury on two indictments for forgery, is to be construed as requiring the appearance of M at the next court of sessions to be held in the city of H, and not at the next court of sessions to be there held at which a jury shall be summoned.
    And where such a recognizance was taken in January 1851, and, at a court of sessions, held in June following, M was defaulted and his recognizance declared forfeited and ordered to be prosecuted, and in an action on the recognizance, it appeared that a regular term of the court of sessions had been held at that place in March of the same year, though no jury had been summoned to attend at such March term, it was held, that no breach of the condition of the recognizance had been shown, and judgment was given for the defendant.
    This was an action upon a recognizance, tried before Parker, Justice, at the Columbia Circuit, in April, 1853.
    The complaint was as follows:

      Supreme Court, Columbia County. — The People of the State of Hew York agt. Edward M. Derby. — The plaintiffs complain of the defendant and show to this court, that on the tenth day of January, A. D. 1851, at the city of Hudson, in the county aforesaid, personally came before a court of Oyer and Terminer then being held in and for the county of Columbia, one Michael P. Mandigo and the said defendant, and acknowledged themselves indebted to the people of the State of New York, the said Mandigo as principal in the sum of one thousand dollars, and the said defendant as surety in the sum of one thousand dollars, by a recognizance in writing signed by them, with a condition therein contained, that if the said Michael P. Mandigo should be and appear at the then next Court of Sessions, to be holden at the Court House, in the City of Hudson, to be tried by a jury, on two indictments for forgery in the second and third degrees, and not depart the court without leave, then the said recognizance to be void or else to be and remain in full force and effect, as by the said recognizance and the said condition, now remaining in the office of the clerk of the county of Columbia, at the city of Hudson aforesaid, reference being thereunto had, will more fully and at large appear. And the said plaintiffs aver, that the next court of sessions at which a jury was summoned and attended, to be holden next after the signing of said recognizance, in and for the county of Columbia, was held at the Couit House in the city of Hudson, in and for the county of Columbia, on the third day of June, in the year of our Lord, one thousand eight hundred and fifty one, before John T. Hoge-boom, county judge of the said county of Columbia, and Wesley R. Gallup and Jacob Barringer, two of the justices of the peace in said county, duly designated according to the statute in such case made and provided to hold courts of sessions in said county, and that the said last mentioned court commenced its session on the said last mentioned day, and that, at the said last mentioned court, held on the day and at the place last mentioned, the said indictments were then pending undetermined therein, and the said recognizance in full force and effect. That the said Michael P. Mandigo being then and there called in open court, during the sitting of the said court, did not appear in said court and abide the order of the said court in the premises, but therein wholly failed and made default: whereupon an order was entered by the said court forfeiting the said recognizance and directing the same to be prosecuted according to law, as by the record and proceedings of the said court, reference being thereto had, will more fully and at large appear. Whereby the said recognizance became forfeited, and an action hath accrued to the said plaintiffs to demand and have of and from the said defendant, the said sum of one thousand dollars above mentioned, wherefore the plaintiffs demand judgment in this action for one thousand dollars, besides costs of this action.
    J. C. Newkirk, District

      Attorney of Columbia County, plaintiff’s attorney.

    The defendant, in his answer put in by M. Sanford, l is attorney, denied each and every allegation contained in the complaint, and alleged that the said Michael P. Mandigo appeared at the said court of sessions, according to the condition of the said recognizance, and that the said condition was complied with in all respects.
    On the trial, the counsel for the plaintiffs produced in evidence and read from the minutes of the court of Oyer and Ter-miner, held in and for the county of Columbia, on the tenth day January 1851, a recognizance in the words and figures following:
    “ The People v. Michael P. Mandigo. — January 10, 1851. Michael P. Mandigo as principal and Edward M. Derby as surety, acknowledge themselves indebted to the people of the state of New York: the said Mandigo in the sum of one thousand dollars, and the .said Edward M. Derby as surety, in the like sum of one thousand dollars, to be levied of their and each of their respective goods and chattels, lands and tenements, to .the use of the said people if default shall be made in the condition following: The condition of this recognizance is such, that if the said Michael P. Mandigo shall be and appear at the next court of sessions to be held at the court house in the city of Hudson, to be tried by a jury on two indictments for forgery in the second and third degrees, and not depart the court without leave, then this recognizance to be void or else to be and remain in full force and effect,
    Michael P. Mandigo.
    Edward M. Derby.
    The counsel for the plaintiffs 'further proved, that on the said 10th day of January, 1851, orders were made by the said court of Oyer and Terminer and entered in the minutes sending each of the said indictments against Mandigo, for forgery, “ to the next court of sessions for trial.”

    The plaintiff’s counsel then proved by the minutes of the court of sessions of said county, held in June, 1851, that an order was made and entered by that court as follows:
    “ The People v. Michael Mandigo. — June 3, 1851. Default entered. Recognizances forfeited and ordered prosecuted. Michael P. Mandigo, principal; Edward M. Derby, surety.”

      John R. Currie was then called as a witness for the plaintiffs, and testified that he was clerk of Columbia county in 1851, and till January, 1853; that he acted as clerk of the Oyer and Terminer in January, 1851; that the recognizance in question was taken by him in open court, and signed by Mandigo and Derby in his presence.
    On his .cross-examination, he testified that there was a court of sessions held in Columbia county in March, 1851; that no jury was drawn for attendance at such term; that the recognizance in question was not forfeited at said March term; that the June term, 1851, was the first term of the sessions at which a jury was summoned or attended; and that it appeared from the minutes of the court of sessions, that, at the said March term, there was no rule or order made or entered sending the said indictments to the June term, or continuing the said recognizance to the said June term. • ^

      M. Sanford, for the defendant.
    J. C. Newkirk (Dist. Att’y), for the people.
   Parker, J.,

after hearing counsel, expressed the opinion, that the proper construction of the recognizance was, that Mandigo should appear at the next court of sessions to be held in the city of Hudson, and not at the next court of sessions at which a jury should be summoned; that Mandigo was bound, therefore, by the recognizance, to appear at the March term, and not at the June term; that though the indictments had been sent to the March term for trial, no proceedings upon them had been had at that term, nor had any step been taken to continue the recognizance till the June term, and that therefore the default taken at the June term was irregular, and no evidence of a breach of the condition of the recognizance. Whereupon the jury, under the direction of the court, rendered a verdict in favor of the defendant.

Judgment for defendant.


author: Wright, J. —

text:
    Supreme Court. At Chambers,
    August, 1853.
    Before Wright Justice.
    The People vs. John Hendrickson, Jr.
    fn determining whether a writ of error should be allowed and a stay of proceedings granted, to enable a .prisoner to review, before the supreme court, an exception taken at the Oyer and Terminer on a trial for murder, it is not necessary that the justice to whom the application is made, should arrive at the positive conclusion that the court erred on the law; it is enough that the exception is not deemed frivolous, and that it involves a gravely important question, in regard to which there is a conflict of authority, and which remains unsettled by the courts of thii state.
    Where a coroner’s inquest was held on the day following that of the alleged murder, at which the prisoner was called by the coroner as a witness, and was sworn and examined by him, under oath, before the coroner’s jury, having been subpoenaed to attend for that purpose, there being some circumstances tending to show that the prisoner was then suspected of the murder, though no charge had then been made against him, and on the subsequent trial of the prisoner at the Oyer and Terminer, the court permitted the counsel for the people to give in evidence the statements made by the prisoner on such examination, it was held there was sufficient doubt of the correctness of the decision to, warrant the allowance of a writ of error with a stay of proceedings.

      In July, 1853, at the Albany Oyer and'Terminer, Justice Martin presiding, the prisoner was convicted on an indictment charging him with the murder of his wife, and sentenced to be executed on the 26th day of August, 1853. A number of exceptions were taken by the counsel for the prisoner during the progress of the trial. After a bill of exceptions had been prepared and settled, the counsel for the prisoner, upon notice to the attorney general, applied for the allowance of a writ of error and stay of proceedings on the judgment.

      Wheaton Sf Hadley, for prisoner.

      Colvin (Dist. Att’y), and

      Chatfield (Attorney General), for the people.
   Wright, J. —

Upon this application, the counsel for the prisoner have directed me to seven distinct exceptions taken during the progress of the trial, each one of which they deem of sufficient importance to merit an examination and review by the supreme court. On the contrary, the attorney general contends that there is but one of the exceptions at all worthy of consideration. The exception which relates to the admission of proof of the statements made by the prisoner under oath at the coroner’s inquest, he concedes, at least, by an elaborate argument of the point, is not to be regarded as frivolous. In determining whether the prisoner shall have an opportunity for review by the supreme court of the exceptions taken, I am not necessarily called upon to arrive at the positive conclusion that the court erred as to the law. It is enough that there is any one exception in the case which I deem not to be frivolous; and which involves a gravely important question, respecting which there may be even a conflict of authority, but which remains unsettled by the courts of this state.

On the trial, the prosecution proved that an inquest was held by the coroner of the county of Albany, on Monday evening, the 7th March, (the death having occurred on the evening previous,) on the body of the deceased. The prisoner was called by the coroner as a witness, and was sworn by him, and was examined as a witness, under oath, before the coroner’s jury. The witness who proved these facts, thinks that the prisoner was subpcenaed by the coroner. The prosecution proposed to prove the statement made by the prisoner before the coroner’s jury under oath. The counsel for the prisoner objected to the witness’ stating what the prisoner swore to when testifying as : witness before the coroner, on the ground that what he swon to upon that occasion, was not a voluntary statement. The objection was overruled by the court, and the evidence admit ted, the prisoner excepting. The counsel for the prosecution then put to the witness this question: “ What account did the prisoner give, when examined as a witness before the coroner of the circumstances at'ending the death of his wife?” The counsel for the prisoner objected to the question, on the grounc (hat his statements, made before the coroner, were not voluntary, while testifying as such witness. The objection was overruled, and the evidence received, and the prisoner excepted. The witness then proceeded to detail the statements made by the prisoner. From the evidence of the witness, it appears that after the prisoner had stated the circumstances occurring on the evening of his wife’s death, he was interrogated as to his having been in the city of Albany a short time previously, what he went to Albany for, and whether he had been in Springsteed’s drug store, or any other drug store, whilst at Albany.

Neither my own necessarily limited examination, or the researches of counsel, have enabled me to find a reported case in the courts of this country, on the question whether, on a trial for murder, the deposition or statement on oath of the prisoner, taken before the coroner on the inquest held on the body of the deceased, is, or is not, receivable in evidence, or upon what precise principle, or under Avhat circumstances, a prior deposition, or statement on oath, of the prisoner should be rejected on his trial for a criminal offence. The case of The State v. Broughton (7 Iredell R. 96), is the only reported American case that I have been able to discover, bearing upon the question, under what circumstances, and upon what principle, the prior statement, or deposition of the prisoner, made on oath before a public officer or body, shall or shall not be receivable. In England, however, there are a number of reported cases. It must be admitted that the decisions of the British judges have not been always uniform; but the weight of authority seems to sustain the position, that when the circumstances do not show the prior statement or deposition of the prisoner made before a magistrate or coroner to have been entirely voluntary, it ought to be rejected.

In a case tried at Worcester, reported in a note to the case of Rex v. Haworth (19 Eng. Com. Law R. 370), where it appeared that a coroner’s inquest had been held on the body of A, and it not being suspected that B was at all concerned in the murder of A, the coroner had examined B upon oath as a witness; Park, J., would not allow the deposition of B, so taken on oath on the coroner’s inquest, to be read in evidence on the trial of an indictment afterwards found against B for the same murder. In Reg. v. Wheeley (8 Carrington & Payne R. 250), the prisoner was charged with the murder of Mary his wife, by administering poison to her. It was opened by Hume for the prosecution; that the deceased had- died from poison, but that there was no evidence to aifect the prisoner, except a statement made by him before the coroner at the inquest. This statement purported oh the face of it to have been taken on oath, but the coroner would state, if parol evidence was admissible, that in fact no oath was administered to the prisoner; Mderson, B., said: “As the statement purports to be a statement on oath, I cannot receive it as evidence against the prisoner; and I think, as it so purports, I can not allow parol evidence to be given to show that the statement was not made upon oath.” In Regina v. Owen et al., at the Stafford assizes, in 1840 (9 Car. & Payne R. 238), Owen, and two others, were charged with the murder of Christina Collins, by drowning her. The prosecution proposed to give in evidence the depositions of the prisoners taken on oath, on the coroner’s inquest held on the body of the deceased; Gurney, B., rejected the evidence. At a former assizes held before Mr. Justice Williams, the prisoners had been tried for ravishing Mrs. Collins. The prosecution proposed to read in evidence the statements made by the prisoners on oath before the coroner’s inquest; Williams, J., decided to receive the evidence, and reserve the question for the opinion of the fifteen judges. As the prisoners were acquitted, the point was not brought before the judges. This decision of Justice Williams was cited by the prosecution on the trial before Baron Gurney for murder; but the statements were, notwithstanding, rejected, the Baron saying, that he was not aware of any instance in which an examination on oath before a coroner or magistrate, had been admitted as evidence against the person making it. In Regina v. Robert and Ann Sandys (41 Eng. Com. Law R. 191), at the Welch summer circuit in 1841, the prisoners were put upon their trial for the murder by poison of their child, Elizabeth Sandys. It appears that she died on the 25th September, 1840, and was buried, and that no suspicion arose that her death had been occasioned by poison until the death of Mary Ann Sandys, another child, who died on the 13th October, 1840. The parents having insinuated that the child, Mary Ann Sandys, had been poisoned by a woman named Riley, she was taken into custody for examination before the coroner as to the cause of death. The mother, Ann Sandys, was examined on oath as a witness. In the course of examination, questions were put to her relative to the death of Elizabeth Sandys. In consequence of her answers, and other circumstances, the body of Elizabeth Sandys was disinterred and examined, when it appeared that she had died of poison. The parents were thereupon taken into custody on the charge of poisoning both children, and were brought before the coroner in custody separately. When Ann Sandys was brought in, she was told that she was charged with having poisoned her two children, and that that was the time when she might make any statement that she liked to the jury, and that what she said would be taken down in writing. Her former deposition made by her as a witness was then read over to her, and she said that she had a further statement to make, which she made, and what she then said was written down, and afterwards read over to her. She was asked to sign it, but she refused. The coroner signed it, and it was produced at the trial, and identified by the person who wrote it, and was offered in evidence against Ann Sandys, together with her original deposition. The counsel for the prisoner objected, that as the greater part of the statement had been made by the prisoner when under examination before the coroner upon oath, it could not be read in evidence against her. Erslcine, J., said he would receive the evidence, and reserve the point for the consideration of the fifteen judges. Ann Sandys was acquitted. Afterwards the case was considered by the judges, but as the prisoner, Ann Sandys, could not be again put upon her trial, their lordships thought it unnecessary to consider whether her examination had been properly received or not.

These are the only cases to which I have been referred, where the question has been distinctly raised as to the admissibility, on the trial of a person for murder, of the deposition or statement made under oath by such person on a coroner’s inquest, held on the body of the deceased. The case reported in the note to the case of Rex v. Howarth; also, the case of Reg. v. Wheeley, and that of Regina v. Owen et al., distinctly hold the inadmissibility of such statement or deposition. In Regina v. Owen, Baron Gurney rejected them when the prisoners were on trial for murder; while Mr. Justice Williams received them on the trial for rape, reserving the point for the judges.

In Rex v. Lewis, (25 Eng. Com. Law R. 333,) the prisoner was indicted for administering poison to Elizabeth Davis. On the day on which the prisoner was committed, she and several others were summoned before the Rev. Charles Bird, and examined on oath touching the poisoning, there being no specific charge against any person; but on the conclusion of the examination, the prisoner was committed for trial on the charge. The prisoner was examined on oath, and her examination taken down. On the trial, the prosecution proposed to put the examination in evidence. Baron Gurney would not receive it, saying, “ That, this being a deposition made by the prisoner at the same time as all the other depositions upon which she was committed, and on the very same day on which she was committed, I think it is not receivable. I do not think this examination was perfectly voluntary. In Rex v. Tubby, (5 Car. & Payne, 539,) on an indictment for burglary, it was proposed by the prosecution to read a statement made upon oath by the prisoner at the time when he was not under any suspicion. Baron Vaughan decided to receive it, but as it contained nothing material, the prosecution did not offer it in evidence. This case was cited to Baron Gurney in that of the King v. Lewis, but he thought the cases were quite distinguishable. In the case of Rex v. Merceron, (2 Starkie’s N. P. Cases, 323,) the defendant was indicted for corruption in office, in having corruptly granted licenses to public houses, In the course of the evidence for the prosecution, it was proposed to prove what the defendant said on his examination before the committee of the House of Commons. The defendant had been compelled to appear before the committee and was examined by them. It was objected that the statement was not voluntary, as he would subject himself to punishment for refusing to answer. Abbott, J., held the statement admissible. This case was afterwards questioned in Rex v. Gilham. (Moody C. Cases, 203.) In Wheater’s Case, (2 Lewis’s C. C. 157,) tried at the York spring assizes in 1838, the prisoner was indicted for perjury, and it was proposed to give in evidence against him his deposition taken on oath before commissioners of bankrupts. It was objected that the deposition was inadmissible as not being a voluntary statement; but to this it was answered that when before the commissioners he was not accused of any crime. Mr. Justice Coleridge received the evidence, reserving the point, and the judges were afterwards of the opinion that the evidence was admissible. In The State v. Broughton, (7 Iredell’s R. 96,) a person sought the opportunity and voluntarily went before a grand jury, and was examined in relation to a certain offence. He was afterwards indicted for that particular offence. It was held on his trial that his testimony before the grand jury might be given in evidence against him. Roscoe says, “ A question sometimes arises whether a statement which has been made by a party .upon his examination as a witness can be given in evidence against him if he should, himself, be put upon his trial for the same offence- The general rule is, that admissions made under compulsory process are evidence against the party.” (Roscoe Crim. Ev. 45.) So also it is said by Starkie, “ that when a witness answers questions on his examination on a trial tending to criminate himself, and to which he might have demurred, his answers may be used for' all purposes.” (2 Starkie’s Ev. 3d ed. 28.) Greenleaf says, “ that when the prisoner, having been examined as a witness on a prosecution against another person, answered questions to which he might have demurred as tending to criminate himself, and which, therefore, he was not bound to answer, his answers are deemed voluntary, and as such may be subsequently used against himself for all purposes, although, when his answers are compulsory, and under the peril of punishment for contempt, they are not received.” And he cites Starkie, Roscoe, Wheater’s Case, and Rex v. Tubby. (Greenleaf Ev. § 225.) So also he says, in commenting upon the case of Rex v. Lewis, “ This case may seem at the first view' to be at variance with wdiat has been just stated on the general principles in regard to testimony given in another case; but the difference lies in the different natures of the two proceedings. In the former case the mind of the witness is not disturbed by a criminal charge; and, moreover, he. is generally aided and protected by the presence of the counsel in the cause; but in th¿ latter case, being a prisoner, subjected to an inquisitorial examination, and himself at least in danger of an accusation, his mind is brought under the full influence of those disturbing forces against which it is the policy of the law to protect him.” (§226.)

The counsel for the prisoner contends that the principles to be deduced from these and other authorities, are, that to render the statement or deposition of the prisoner admissible against him, it must have been made under circumstances showing it to have been perfectly voluntary; that a statement made on oath before a coroner on an inquisitorial examination as to the cause of the death of the deceased, when the prisoner did not volunteer to make it, is not a voluntary statement, but is made under a sort of restraint or duress, and when he himself at least is in danger of an accusation; that when such statement is not made as a witness in a prosecution against a third person, but is drawn from him under oath in an investigation by a magistrate or coroner as to the cause of the death of the person that he is afterwards indicted and put upon trial for the murder of, it is not voluntary; and hence, under those circumstances, and whether the prisoner was at the time he made the statement charged with crime or under suspicion or not, such statement or deposition, or evidence, is not to be received against him. On the contrary, the attorney general contends, that whether the statement be made before a coroner or other officer or body that may issue compulsory process, the distinction is, that if, when a person makes the statement sought to be offered in evidence, he is not charged with any crime, or suspected, the statement is receivable. If he be suspected, or in custody, then it is to be rejected. The cases cited would seem to sustain, in a degree, the positions of both counsel. I think it is clear that the previous statement of a prisoner ought not to be received against him, unless it has been voluntarily made. When made in a civil suit, or in a prosecution against a third person, and the witness’s mind is not disturbed by a criminal charge, or he is himself in no danger of an accusation, his testimony or statement is deemed to be voluntary, and is to be received against him. When charged with crime, or suspected, any examination under oath is not a voluntary examination, and for that reason is to be rejected. Indeed so far have the English courts gone on this subject, that in the case of The King v. Wilson, (1 Holt, 597,) where the committing magistrate stated that the prisoner-was not sworn, that he held out no hope or inducement to him and employed no threats, but that he examined him at considerable extent, in the same manner that he was accustomed to examine a witness, Baron Richards refused to suffer the exami-uation to be read, holding that it was “ no matter whether the prisoner was sworn or not. An examination its.elf imposes an obligation to speak the truth. If the prisoner will confess, let him do so voluntarily. Ask him what he has to say. But it is irregular in a magistrate to examine in the same manner as a witness is exámined.’5 It would be error, of course, for a committing magistrate to impose an oath, or even to examine as he would a witness, a person charged before him with crime. Statements or confessions made under such circumstances would not be voluntary. Are they or not to be deemed voluntary, when made under oath, on an inquisitorial examination by a coroner as to the cause of the death of the deceased, no specific charge being made against any person? This is the important question in this case, and as I have intimated, I am not called on upon this application to definitively arrive at the conclusion, that, in law, statements or confessions made under such circumstances are not voluntary and should be rejected. It is enough that there is doubt as to the law; that from the decided cases, it is not a clear proposition that the presiding judge, on the trial of the prisoner, was right in admitting evidence of statements made on oath at the coroner’s inquest, to justify me in giving the prisoner an opportunity to present the question to the supreme court. It is also worthy of remark that the evidence in the case, and the examination of the prisoner at the coroner’s inquest, would seem to show that at the time of such examination he was a suspected man. The deceased had died suddenly. But a few hours before she was found dead, she had retired to her room in company with the prisoner, in her usual health. Her death occurred when he only was in her company. On his examination he was interrogated as to his being at Albany prior to his wife’s decease, and whether he had been in Springsteed’s or any other drug store in the city.

There are one or two other exceptions growijig out of the admission of evidence on the trial, that I deem not unworthy of further consideration; especially that, when under the pretext of showing the state of feeling existing between the prisoner and his wife, and furnishing evidence from which the jury might infer a motive for the prisoner’s committing the crime of which he was charged, the court permitted evidence of charges of moral delinquency made by the wife against the prisoner, in conversations with him, without the prosecution proposing to show, or showing, that the prisoner resented such charges, or that they produced any ill will,, or irritated, or revengeful feeling, on his part.

I shall allow a writ of error in this case^, with a stay of proceedings; oni the judgment. One or two of the questions raised by the bill of exceptions are exceedingly important; and whe ther it shall be hereafter determined that the court of Oyer and Terminer erred or not upon these questions, there is at least, in my view, probable grounds to justify me in giving the prisoner an opportunity for a review of the questions by the Supreme Court.