author: Balcom, J.

text:
    Supreme Court. Chenango General Term,
    May, 1859.

      Mason, Balcom and Campbell, Justices.
    The People v. James Blakeley.
    A communication made' to an attorney at law, by a person seeking professional advice or' assistance to enable him to forge a contract, is not privileged, and the attorney, when called as a witness, can be required to disclose it.
    It is competent to ask a witness, on his cross-examination, with a view to affect his credibility if affirmatively answered, whether he had not been guilty of adultery, and had. a venereal disease since his marriage. If the facts thus inquired "into are wholly collateral to the issue in the case, the witness may refuse to answer such questions, and no inference unfavorable to the character of such witness can be drawn from such refusal.
    Where the prisoner was tried on a charge of having forged the name of W. B. to a note and contract, dated 16th or ltth of April, 1855, and it appeared that at such dates "W. B. was confined to his bed by sickness, and that he died on the 20th of that month, and that he had given np all hopes of recovery as early as the 13th of the same month, it was held to be competent for the prisoner to prove, that on the 18th of that month W. B. stated to the witness that he had signed the note and contract in question.
    On reversing a judgment of the Oyer and Terminer, by which the prisoner .was sentenced to imprisonment in the State Prison, and ordering a new trial therein, the Supreme Court further ordered that the prisoner should appear at the next Court of Oyer and Terminer, to be held in the county in which he had been convicted, to stand trial on the indictment, and not depart the court without its leave, and abide its orders and judgment.
    The prisoner was tried, at the Delaware Oyer and Terminer, in August, 1858, for forging and uttering, as true, a note and contract, which were in the words and figures following, to wit:
    “ Kortright, April 17, 1855.
    “ Thirty days from date, for value received, I promise to pay James Blakeley, or bearer, one thousand dollars, with use.
    “WILLIAM BLAKELEY.”
    “Kortright, April 16,1855.
    “ I hereby acknowledge that the receipt given to me by my brother, James Blakeley, thirty-two years ago, in full of all notes, book accounts, actions, and causes of action, either in law or equity, to his fall satisfaction, was obtained from him by fraud and through fear of bodily harm; and I farther acknowledge that the judgment then rendered in his favor for three hundred and twenty-five dollars was just, and that I always intended to pay the same, but still have neglected so to do. Said judgment, principal, and interest is not included in the receipt executed by the said James Blakeley to me, on or about the 12th day of April, 1855, nor in any other receipt ever before executed by him to me, and the whole amount of said judgment, principal and interest still remains due and unpaid. How, therefore, in consideration of the premises, I hereby agree and promise to pay the said James Blakeley the sum of three hundred and twenty-five dollars, with the interest that may have accrued on the same from the 16th day of April, 1823, by the 1st day of June, if I recover from this sickness; if not, I desire that the same be paid out of my estate, as soon as possible, by my executors. •
    “WILLIAM BLAKELEY.”
    It was proved that William Blakeley was a brother of the prisoner, and that he had resided many years in Kortright, in the county of Delaware. He died there on the 20th day of April, 1855. He lost all hope of living as early as the 13th day of that month.

      William Q. Blakeley, a witness for the People, who was a son of the deceased, gave evidence that tended to show the prisoner was guilty of the crime for which he was tried. On his cross-examination, he testified as follows, namely: “ I am 37 years of age; I left my father’s fifteen years ago; I was married in 1846 ; commenced keeping house in 1847; I kept house two or three years; after that I separated; I have not since cohabited with my wife.”
    Question by the prisoner’s counsel: Have you had the venereal disease since you were married?
    This question the court overruled, and decided it was not proper; and counsel for the prisoner duly excepted.
    The prisoner’s counsel then asked the witness if he had not, since he was married, had connection with other women than his wife; which question the court overruled, and decided that the same was incompetent; to which decision the prisoner’s counsel excepted.
    The prisoner’s counsel then asked the witness whether he had not, since he was married, had the pox; which question the court decided was not proper, and overruled the same; to which decision th.e prisoner’s counsel excepted.
    The counsel for the prisoner offered to prove by the witness that he had connection, since he was married, with other females than his wife, that he had contracted a venereal disease, and had the pox, in order to show that he had led a vicious and dissolute life; but the court decided that the said testimony so offered, was illegal and incompetent. To which decision the prisoner’s counsel excepted.

      Sheldon A. Givens, a witness for the People, testified as follows : I know James Blakeley; about five weeks after I heard of the death of William Blakeley, and about the 25th of May, 1855, he came to me in a lot, where I was engaged, and said he wanted to talk with me some when alone, where none could hear; I went with him to a dwelling house.” The witness then testified that he was then an attorney and counsellor at law of the Supreme Court, practising at Harpersfield, and that he had been, previous to this, counsel for the defendant.
    The counsel for the prisoner objected to any proof of what the prisoner then and there said to the witness, upon the ground that it was privileged; but the court overruled the objection, and the prisoner’s counsel excepted.
    The witness then further testified: “The prisoner wished me to draw a paper that would have the effect of reviving or keeping alive a judgment. He said 25 years before, he obtained judgment against William Blakeley, before Zaeharias Smith, Daniel Little and some one else, and he gave the amount quite large. He said William made him surrender the judgment without paying for it, and he wanted I should draw a paper that would have the effect to revive and keep alive that judgment. I told him I would have nothing to do with it, and advised him not to. He .said I need not be afraid of any exposure; he would set down and make a copy himself, so that my handwriting should not go out. He produced a receipt of the 12th of April, from William, a few days before, and pointed out and called my attention to the signature, and said “You know that is genuine.” I think I recognize the receipt here in court of April 12th, 1855, signed William Blakeley, as the one he had. I think he showed it to me, and said, “ You. know that is his handwriting.” The prisoner then asked me what was to pay; I said nothing; and he said, there is two dollars—take this—you did some business for me in a horse trade.
    On his cross-examination the witness said: “I had done business for James before April, 1855. He asked me what was to pay, and gave me two dollars, and I kept it.”
    The counsel for the prisoner then asked the court to strike out the testimony of the witness, Givens, upon the ground that the communication was privileged, which the court refused to do, to which refusal the prisoner’s counsel excepted.
    The prisoner afterwards gave evidence which tended to show that the note and contract, which he was tried for forging, were seen on the 18th or 19th of April, 1855, signed as they appeared to be at the trial.
    The prisoner offered to prove that William Blakeley, deceased, admitted to a witness, on the 18th of April, 1855, that he had signed the note and contract in question, but the court, upon the objection of the district attorney, rejected the offer, to which the prisoner’s counsel excepted.
    The district attorney produced receipts signed by the prisoner, (one of which was dated the 12th day of April, 1855,) which showed that the defendant and the deceased had settled all demands that existed between them prior to the date of such receipts; and he also gave other evidence that tended to show there was no consideration or indebtedness to uphold the note and contract that were alleged to have been forged; and thereafter the prisoner offered to prove admissions made by William Blakeley, deceased, prior to the 16th of April, 1855, to the effect that he owed the prisoner the judgment mentioned in the contract, and also that he had collected money of one Leal for the prisoner, which he had never accounted for to the prisoner, and that he intended to pay the prisoner therefor; but upon the objection of the district attorney, the court rejected such offer, and the prisoner’s counsel excepted.
    Witnesses were examined who were acquainted with the handwriting of the deceased, some of whom testified they were of the opinion the signatures to the note and contract in question were in the handwriting of the deceased; the others thought they were not in his handwriting.
    The jury found the prisoner guilty, and he was sentenced to imprisonment in the State Prison at Auburn for the term of two years.
    The prisoner’s counsel made a bill of exceptions, which was duly signed and incorporated into the record of the defendant’s conviction.
    A writ of error was allowed by one of the justices of this court, with a direction that it operate as a stay of proceedings on the judgment against the prisoner. The writ and a copy of the record were sent to this court by the clerk of Delaware county.

      John Grant (District Attorney), for the People.

      A. Becker, for the defendant.
   By the Court,

Balcom, J.

The declarations of the prisoner, proved by the witness Givens, were made thirty-nine days subsequent to the date of the contract in question. When they were proved, no evidence had been given that the contract had been seen by any person prior to the time they were made. Such declarations, therefore, were properly admitted to show that the contract was not in existence when William Blakeley died, nor within thirty-nine days subsequent to its date. But it is claimed by the prisoner’s counsel, that because Givens was an attorney of this court, and was being consulted as such by the prisoner when the declarations were made, they were privileged, and therefore covered by the seal of professional confidence. This position is clearly untenable. An attorney may testify to any communication made to him to obtain professional advice or assistance, as to the commission of a felony or other crime which is malum, in se. (The Bank of Utica v. Mersereau, 3 Barb. Ch. R., 598.) Nothing, therefore, was privileged that the prisoner said to Givens, if he was seeking professional advice or assistance to enable him to forge the contract; and he was seeking such advise or assistance, if Givens correctly related the conversation between them.

The next question I shall consider, is, whether the prisoner’s counsel should have been permitted to ask the witness, William G. Blakeley, on cross-examination, if he had not had a venereal disease and been guilty of adultery subsequent to his marriage. The counsel stated to the court his object in putting the question was to show that the witness “ had led a vicious' and dissolute life.”

Boscoe lays down the rule that “ questions with regard to particular facts tending to degrade the witness and affect his character and credit may be put to him on cross-examination, even though irrelevant to the matter in issue; but the party putting them must be satisfied with the answers given by the witness, and cannot call witnesses to prove those answers false. (Roscoe's Cr. Ev., 4th Am. ed., from 3d London ed., 180.) And this rule is too firmly established to be questioned. (See The People v. Rector, 19 Wend., 569; Southard v. Rexford, 6 Cowen, 254; Ward v. The People, 6 Hill, 144; Barbour's Cr. Tr., 399, 400, 401, 402; 4 Wend., 229; Roscoe's Cr. Ev., 307; Cow. & Hill's Notes, 419; Howard v. The City Fire Ins. Co., 4 Denio, 502; Lohman v. The People, 1 Comst, 379; 1 Greenl. Ev., §§456, 460.) Greenleaf states this qualification to the rule, namely: “ Questions, the answers to which, though they may disgrace the witness in other respects, yet will not affect the credit due to his testimony,” are generally suppressed. (1 Oreenl. Fv., § 548.) He places, in this class of questions, one frequently put to the principal female witness, in trials for seduction per quod seroitium amisit, and on indictments for rape, &c., whether she had not previously been criminal with other men, or with some particular person; and he cited a case where, on the trial of a female prisoner for stealing from a person in a house, the prisoner’s counsel was not permitted to ask the prosecutor whether, at that house, anything improper passed between him and the prisoner. (1 Greenl. Mo., § 458.) And in a note, he refers to the case of Macbride v. Macbride (4 Esp. Rep., 242), where the plaintiff called a woman as a witness to prove a part of his demand, and Lord Alvanley refused to allow the defendant’s counsel to ask her whether she slept with the plaintiff. But these views are in conflict with the decision of this court in The People v. Abbot (19 Wend., 192). ¡Now, with all due respect for the opinions of this learned author, I must say, it seems to me the cases referred to by him do not properly fall within the qualification he states to the rule as laid down by Boscoe; for the reason that the commission of adultery or fornication injures the general character of either sex; and the degree of credit due to the testimony of a witness, depends as well on his general character as on that for mere veracity. Vicious habits of whatever kind, sear the conscience and prepare those who practice them for the easy utterance of falsehood. The late Justice Cowen thought the credit of a witness was much affected, when he confessed, upon a cross-examination, he had for some time led an idle and intemperate life, the inmate of porter houses at hours unseasonably late, and had for two years been wasting his means in a course of adulterous lewdness, alienated from his family, unjust to them and to bis creditors. (See The People v. Rector, 19 Wend., 586.)

In Lohman v. The People (1 Comst., 379), the principal witness to sustain the indictment was a female, and she was interrogated without objection, on cross-examination, with the view of discrediting her, as to whether she had had sexual intercourse with any person other than one Cook, by whom she testified she became pregnant; and she was also asked whether she had not had the venereal disease; but she declined to answer the interrogatories, and the court refused to compel her to answer them, and to such refusal the prisoner’s counsel excepted. Judge Gardiner, in delivering the opinion of the Court of Appeals in that case, assumed, that if the witness had given affirmative answers to the interrogatories, they would have affected her general character; but he held, the court did right in refusing to compel her to answer the interrogatories. It was adjudged in The People v. Abbot (supra), that on the trial of a person charged with the crime of rape, or an assault with intent, &c., the inquiry may be made of the prosecutrix, on cross-examination, whether she has not had previous criminal connection with other men, and that, in such case, she is not privileged from answering; also that on such a trial the prisoner may show the prosecutrix to be in fact a common prostitute. All that Lord Ellenborough decided in Dodd v. Norris (3 Camp., 519), was that the plaintiff’s daughter, who testified the defendant was the father of a child she had had, could not be compelled, on cross-examination, to answer whether, before her acquaintance with the defendant, she had not been criminal with other men.

Mow, notwithstanding the above mentioned views of Green-leaf, and the cases cited by him to support them, the weight of authority is in favor of allowing questions to be put to witnesses on cross-examination, which do not relate to the matter in issue, if affirmative answers thereto would affect the general character of the witnesses. And in the case under consideration, I am of the opinion the prisoner’s counsel should have been permitted to ask the witness Blakeley, on cross-examination, whether he had not been guilty of adultery, and whether he had not had a venereal disease since his marriage; for the reason, if such questions had been allowed and answered in the affirmative by the witness, Ms general character would have been somewhat impeached (1 Greenl. Ev., §§455, 456), and it would then have been for the jury to determine whether his evidence was entitled to full credit. If the questions had been allowed and the witness had refused to answer them, as he might because they called for facts wholly collateral to the issue in the case, no inference unfavorable to his character could have been drawn from such refusal. (Barbour's Cr. Tr., 401; 1 Greenl. Hv., § 451; Cow. and Hill's Notes, 747, 748.) Lord Ellenborough in Millman v. Tucker (2 Peak., 222), told a witness, on his being asked by Erskine whether he had not been convicted of forging coal-meters’ certificates, that he need not answer; and he told the jury that the witness, having availed himself of the privilege, was not thereby at all discredited ; and he also said he himself should, had he been asked such a question, have refused to give an answer, for the sake of the justice of the country, and to prevent such an examination.

The district attorney had no right to object to the questions that were put to the witness, William Gr. Blakeley, in this case. (1 Greenl. Hv., § 451; The People v. Bodine, 1 Denio, 280; Ward v. The People, 6 Hill, 144; Barbour’s Cr. Tr., 400.) But I think it is proper for the court, when such questions are put, to inform the witness of his privilege to decline answering. (Cow. & Hill’s Notes, 747.)

The only other question in the case which I shall consider, is whether .the prisoner should have been permitted to prove that the deceased stated to a witness, on the 18th day of April, 1855, he had signed the note and contract in question. The bill of exceptions shows, “it appeared in evidence that all hopes of recovering by the deceased ceased on the 13th of April, 1855also, that he died on the 20th day of that month. The contract and note bore the dates of April 16th and 17th, .1855.

I was inclined, on the argument, to the opinion that the above mentioned declaration was properly rejected as mere hearsay, in accordance with the general rule, which declares “ such evidence is inadmissible to establish "any specific fact, which, in its nature, is susceptible of being proved by witnesses, who can speak from their own knowledge.” (SeeWharton's Am. Cr.Law, 244.) But subsequent reflection, and an examination of the authorities, have satisfied me the declaration should have been received as evidence. I will first remark that no person other than the prisoner, except the deceased, had any certain knowledge as to whether the latter signed his name to the note or contract; and unless the prisoner wronged him, or attempted to wrong him, by forging his name to those instruments, he committed no offence against the people; and it was against the interest of the deceased to say, on the 18th day of April, 1855, he had signed the note and contract. Secondly, declarations, which are secondary evidence, are sometimes received in consequence of the death of the person making them, whether they were made at the time of the fact declared, or at a subsequent day, when it is shown that he possessed competent knowledge of the facts, or that it .was his duty to know them, and that the declarations were at variance with his interest. G-reenleaf says: “When these circumstances concur (meaning in a proper case), the evidence is received, leaving its weight and value to be determined by other considerations.” (1 Greenl. Ho., § 147; Whtte v. Chouteau, 10 Barb., 202.) He further says, while speaking of the admissibility of this class of declarations in certain cases: “ The ground upon which this evidence is received, is the extreme improbability of its falsehood.” (Id., §148.) And he again declares: “In some cases the admissions of third persons, strangers to the suit, are receivable. This arises when the issue is substantially upon the mutual rights of such persons, at a particular time, in which case the practice is to let in such evidence in general as would be legally admissible in an action between the parties themselves.” (1 Greenl. Ho., § 181. See Kelly's case, 3 City Hall Recorder, 153.) It is true this is said only in regard to civil actions; but the rules of evidence in criminal cases are, in most respects, the same as in civil cases. (Barb. Cr. Tr., 351.).

Roscoe declares that the declarations of deceased persons, made against their own interests, are admissible in some cases, “ as where a man charges himself with the receipt of money, it is evidence to prove the payment.” (Roscoe's Cr. Ev., 4th Am. ed., 26.)

The reason usually assigned for the rejection of mere hearsay as evidence, is its incompetency to satisfy the mind as to the existence of the facts sought to be established, as well as the frauds that may be practised under its cover. (Wharton's Am. Cr. Law, 2d ed., 244.) But what proof would be more convincing in this case, that the prisoner is innocent of the . crime with which he is charged, than the declaration of the deceased, on the 18th "day of April, 1855, that he had settled with the prisoner, and executed the note and contract in question? I answer, not any, except the positive assertion of a credible witness that he saw the deceased sign his name to them. The adverse interest of the deceased, and the fact that he believed he was on his bed of death, repel the idea of any fraudulent intent on his part in declaring he had executed the note and contract; and if he made that declaration while in his right mind, the presumption that it was true is exceedingly cogent, yea, almost morally certain. I must, therefore, hold that the declaration should have been received as evidence for the prisoner.

The judgment of the Delaware Oyer and Terminer should be reversed for the two erroneous ridings I have specified, and a new trial granted to the prisoner in that court; and he should be required to appear at the next Court of Oyer and Terminer, to be held in Delaware county, to stand trial on the indictment, and not depart that court without leave, and abide its orders and judgment.

Campbell, J., concurred in the foregoing opinion. Mason, J., concurred in the same upon the first two propositions discussed in it, but expressed no opinion on the last question contained in it. ■

Judgment accordingly.


source: Caselaw Access Project

author: Rosekrans, J.

license: Public Domain

text:
    Supreme Court. Clinton General Term,
    May, 1859.

      James, Rosekrans and Potter, Justices.
    Daniel O'Leary, plaintiff in error, v. The People, defendants in error.
    An assault and battery with intent to kill, is not a felony by our statute or at the common law, unless committed with a deadly weapon, or by such other means or force as are likely to produce death.
    Where, in an indictment, the first two counts charged the prisoner with having committed an assault and battery with a deadly weapon, with intent to kill one M. 0., and the third count charged an assault and battery upon the said M. C., with intent to maim her, and, on the trial, the jury found the prisoner “guilty of the crime of assault and battery with intent to kill,” and the court thereupon sentenced the prisoner to imprisonment for two years in the State Prison, the judgment was reversed on the ground that, on the verdict rendered, the court was only authorized to punish for a simple assault and battery-
    And the case having been brought from the Court of Sessions to the Supreme Court, by writ of error, it was held that the latter court had not the power to order a new trial in the court below, but that the judgment of reversal was final.
    Form of an indictment for assault and battery committed with a deadly weapon, with intent to kill, with a count charging an intent to maim.
    Form of certiorari after writ of error, with a return thereto.
    This case came up on writ of error to the Court of Sessions of Saratoga county. By the return to the writ it appeared that an indictment had been found against the plaintiff in errorj in the following words:

      Saratoga County, ss:

    The Jurors of the People' of the State of New York, in and for the body of the county aforesaid, to wit:
    Lawrence W. Bristol, &c., &c., good and lawful men of the county aforesaid, then and there sworn and charged to inquire for the said People for the body of the county aforesaid, upon their oaths present: That Daniel O’Leary, late of the village of Waterford, in the county of Saratoga aforesaid, on the twenty-second day of September, in the year of our Lord one thousand eight hundred and fifty-seven, with force and arms, at the village of Waterford, in the county of Saratoga aforesaid, in and upon one Margaret Collins, then and there being, feloniously did make an assault, and her, the said Margaret Collins, with a certain deadly weapon, commonly called a cleaver, which the said Daniel O’Leary in his right hand then and there had and held feloniously, did beat, strike, and cut, and wound, with intent her, the said Margaret Collins, then and there feloniously and willfully to kill, and other wrongs to the said Margaret Collins, then and there did, to the great damage of the said Margaret Collins, against the statute in such case made and provided, and against the peace of the People of the State of Mew York and their dignity.
    And the jurors aforesaid, on their oath aforesaid, do further present, that the said Daniel O’Leary, late of the town and village of Waterford, in the county of Saratoga, on the twenty-second day of September, in the year of our Lord one thousand eight hundred and fifty-seven, with force and arms, at the village and county aforesaid, in and upon Margaret Collins, then and there being, feloniously did make an assault, and her, the said Margaret Collins, with a certain deadly weapon commonly called a cleaver, which he, the said Daniel O’Leary, in both his hands then and there had and held, feloniously did beat, strike, and cut, and wound, with intent her, the said Margaret Collins, then and there feloniously and willfully to kill, and other wrongs to the said Margaret Collins, then and there did, to the great damage of the said Margaret Collins, and against the statute in such case made and provided, and against the peace of the People of the State of Mew York and their dignity.
    And the jurors aforesaid, on their oath aforesaid, do further present, that the said Daniel O’Leary, on the said twenty-second day of September, in the year last aforesaid, with force and arms, at the village and county aforesaid, in and upon the said Margaret Collins, then and there being, feloniously did make another assault, and her, the said Margaret Collins, with a certain cleaver, which he, the said Daniel O’Leary, in both of his hands then and there had and held the said cleaver> being a deadly weapon, feloniously did. beat, strike, cut and wound, with intent her, the said Margaret Collins, then and there feloniously and willfully to maim, against the form of the statute in such case made and provided, and against the peace of the People of the State of Mew York and their dignity.
    JOHN 0. MOTT, District Attorney.

    The defendant pleaded not guilty, and on trial was convicted and sentenced to two years’ imprisonment in the State Prison.
    After a return to the writ of error, the plaintiff in error procured the issuing of a certiorari, as follows:
    The People of the State of Mew York to our Court of Sessions of the county of Saratoga, Greeting:

    We being willing, for certain causes, to be certified as to the exact words and form of the verdict rendered against Daniel O’Leary in your said court, upon an indictment against him, which said indictment and the judgment thereon, have been certified to our Supreme Court, in answer to the writ of error issued in behalf of said defendant, do command you, that, having searched the records of said Court of Sessions, the exact words and form of the verdict rendered against said Daniel, and whether that is the only verdict rendered against him in said court, you certify to our justices of our Supreme Court of Judicature, without delay, at the Capitol, in the city of Albany, fully and entirely as the same remains on record in your said court, and this writ.
    Witness, George Gould, Esq., one of the Justices of said court, at Albany, September 3d, 1858.
    B. BABCOCK, Cleric.

    I. C. Ormsby, Attorney.

    To which certiorari the following return was made:
    The answer of the Court of Sessions of the county of Sara-toga to the within writ of certiorari.. Searching the records of said court, we find, under date of June 14th, 1858, the following verdict, rendered against the said Daniel O’Leary, viz.: “ The jury find the prisoner guilty of the crime of assault and battery, with intent to kill.”
    ' That the above are the exact words and form of said verdict, and the only verdict rendered against him in our said court.
    And this we do certify to the justices of the Supreme Court, as we are within commanded.
    Given under the seal of our said court, at Ballston Spa, October 30, 1858.
    .For the court.
    JAMBS W. HORTON, Clerk.

    [L. S.]

      I. C. Ormsby, for the plaintiff in error.
    I. The judgment is erroneous. It is a familiar principle that all the circumstances essential to sustaining an indictment, must be expressly found by the jury. (1 Chitty's Crim. Law, 644; Commonwealth v. Call, 21 Pick., 513; Commonwealth v. Fischblatt, 4 Metcalf, 355; Fenwick v. Logan, 1 Missouri R., 401.)
    Under this indictment, in order to convict the prisoner of the felony charged, four distinct, material, substantive facts were necessary to be found, to wit: 1st. An assault; 2d. A battery; 3d. An intent to kill; and 4th. By means of a deadly weapon. A general verdict of guilty would have embraced such a finding. Hot so with a qualified verdict, for the very object of a departure from the usual form is presumed to be for the purpose of declaring the prisoner guilty of certain facts only. (Commonwealth v. Call, before cited.)

    II. The only complete and substantive crime found by the jury was that of assault and battery, and the intent found is merely matter in aggravation. (Commonwealth v. Fischblatt, 4 Metc., 356.)
    It has been expressly held that an assault and battery with intent to kill, unless it be with some deadly weapon, or by some other means likely to produce death, is not a felony.
      (Barb. Cr. Law, 80; Com. v. Barlow, 4 Mass., 439; 4 Blackstone, 207 (note k), Christianas ed.)

    III. The English doctrine that, under an indictment for a felony, the prisoner cannot be convicted of a misdemeanor, does not prevail here. Accordingly, under an indictment for murder, the prisoner may be convicted of manslaughter; under an indictment for burglary or robbery, the prisoner may be convicted of simple larceny. (The People v. Jackson, 3 Hill, 92, and cases there cited.)

    And on an indictment founded on a statute, the defendant may be found guilty at common law. (1 Chitty Cr. Law, 639.)

      John O. Mott (District Attorney), for the defendants in error.
    I. The only matters properly in the return of the clerk in this case to the writ of error, are, a transcript of the indictment and the judgment of the court; all others should be stricken out. The court of review is confined to such errors as appear upon the face of the indictment, or in the bill of exceptions. (2 B. S., éth ed., 923, § 22, 924, § 25; The People v. McCann, 3 Park. Cr. R., 272.)
    1. There being no bill of exceptions in the return, the only errors of which the defendant can take advantage, are such as' appear upon the face of the indictment and the judgment. (2 B. S, éth ed., 924, §25.)
    2. The certiorari and return thereto should be disregarded by this court. They form no part of the records, and are not brought up by the writ of error. (The People v. McCann, 3 Park. Cr. R., 272.)
    II. The indictment is good on its face under 2 Bevised Statutes, éth ed., 851, § 38, and it is equally valid under 2 Bevised Stututes, éth ed., 852, § 41.
    The judgment is such a one as a conviction under either section of the statute would authorize. (The People v. Allen, 5 Denio, 76; Biggs v. The People, 8 Barb., 547.)
    III. The verdict in this case was not a special verdict. In order to constitute a good special verdict, the jury must find all the facts constituting the crime, and bring it within the jurisdiction of the court. (1 Chitty's Crim. Law, 5th Am. ed., 636, 642; Commonwealth v. Call, 21 Pick., 509; Dyer v. Commonwealth, 23 Pick., 402; Commonwealth v. Fischblatt, 4 Metcalf, 354; McGuffie v. The State Georgia, 17 Georgia, 497.)
    IV. The yerdict in this case is a general verdict under section 38, 2 Revised Statutes, 4th ed., 851; and also under section 41, 2 Revised Statutes, 4th ed., 852, and the sentence of the prisoner to the State prison for a term not exceeding five years, is sustained by the verdict. (Commonwealth v. Fischblatt, 4 Metcalf's R., 354; The People v. Shaw, 1 Park. Cr. R., 327; The People v. Jackson, 3 Hill R., 92; The People v. White, 22 Wend., 175; McGuffie v. The State of Georgia, 17 Georgia, 497; Girts v. The Commonwealth, 22 Penn. R., 351.)
    1. Under an indictment for murder, the prisoner may be convicted of manslaughter. (People v. Jackson, 3 Hill, 92.)
    2. So the prisoner may be convicted of simple larceny, under an indictment for burglary or robbery. (People v. Jackson, 3 Hill, 92; People v. White, 22 Wend., 175.)
    3. If the court should be of opinion that we are not allowed to refer to the indictment for the means or weapon with which the assault and battery was committed, then we say the verdict is good under the 41st section, as by that section no instrument or means are required except the act and intent.
    V. If the court is of opinion that the verdict is not one of guilty, then the prisoner must be again put on his trial. (Commonwealth v. Call, 21 Pick., 509.)
   Rosekrans, J.

The verdict rendered in this case is not a special verdict, as it omits to find the facts upon which judgment of law is to be pronounced by the court. But it is a general verdict of guilty as to the charge of assault and battery, but not of the assault and battery with a cleaver, with intent to kill. It is a partial verdict—a verdict of guilty of a part of the charge contained in the indictment, and is silent as to the residue of the charge. It maybe that the jury intended by the verdict to cover the entire charge in the indictment, and before it was rendered and the jury discharged, their attention might have been directed to the informality by the court, and the verdict corrected. But nothing should be left to intendment or inference after the verdict is rendered. It should be either a general verdict of guilty when the whole charge is sustained, or a special verdict, finding aE the facts to sustain the whole charge, in order to subject the defendant to the full punishment prescribed by statute for the offence. The fact that the jury have chosen not to find a general verdict of guilty, or a special verdict setting forth all the facts necessary to constitute the entire offence charged, furnishes an argument that they do not intend to find the defendant guilty of the whole offence charged, but only of such parts of it as are included in the verdict. The offence charged in this case was an assault and battery with a cleaver (a deadly weapon), with intent to kill. The jury found the defendant guilty of the crime of assault and battery, with intent to kill. They did not, however, find that the assault and battery was with a cleaver, or that the defendant intended to kill the person assaulted with a cleaver. An assault and battery, with intent to kEl, is not a .felony, unless it is committed with a deadly weapon, or by such other means or force as are likely to produce death. (3 B. S., 5th ed., 944, § 38.) It is better to hold to some degree of strictness, as to the manner of rendering verdicts and entering them in the minutes of the court, than to leave the design of the jury a matter of doubt, or of inference or argument. Under this indictment, the defendant could be convicted of a simple assault and battery, and as the verdict is sufficiently formal for that offence, judgment should have been rendered against the defendant on that verdict.

The judgment of the Court of Sessions should be reversed. We can neither give a new judgment, nor send the case back for a proper judgment. (People v. Taylor, 3 Denio, 91; Commonwealth v. Fischblatt, 4 Met. R., 354; Dyer v. Commonwealth, 23 Pick., 404; 2 Camp. R., 646.)

Potter, J. The defendant was indicted for two statute offences. The first and second counts were for the same offence, only varied in statement—for an assault and battery with a deadly weapon, with intent to kill one Margaret Collins. The third count was for an assault and battery uponthq said Margaret Collins, with intent to maim her.-

A trial was had before the Saratoga Sessions. The jury rendered their verdict, “ that they find the prisoner guilty of the crime of assault and battery with intent to kill.” The judgment of the court upon this verdict, was a sentence of the prisoner (the defendant), to imprisonment in the State Prison for two years.

So much of the case was brought up by writ of error. A certiorari was also issued in the case, upon which the clerk returns the verdict in form as rendered by the jury, and that the exact words and form of the verdict of the jury were as above given, and that was the only verdict rendered against the defendant in said court.

Thus we have before us, by writ of error and certiorari, all that the defendant desires to have reviewed. The attorney for the People objects to so much of the case as is brought up by certiorari, and moved to have it struck out of the case.

I think the practice in this district justifies the bringing up of any errors that affect the party, whether in, or dehors the record, or otherwise, and that we should therefore pass upon all questions brought before us by writ of error, or certiorari, or both.

The verdict of the jury was a special verdict, and did not find the defendant guilty of either of the statute offences for which he was indicted.

The offence defined in the 38th section, Revised Statutes, 665 (944 5th ed.), is as follows: “Every person who shall be convicted of shooting at another, or attempting to discharge any kind of arms or air-gun at another, or of any assault and battery upoy, another by means of any deadly weapon, or by such other means ©r ¡force as was likely to produce death with the intent to Mil, maim, or rob such other person,” &c., “ shall be punished,” &c.

The offences that are described in the 41st section, are a class of offences, the punishment of which is not before prescribed. As the punishment of the offence described in the indictment is prescribed in the above 38th section, it will be seen that the 41st section has nothing to do with this case.

The indictment in this case is a good indictment in form for the offence it describes, and the offence set forth comes within the 38th section of this statute. The jury, however, have not found the defendant guilty of that which constitutes' the main feature of the crime, to wit: the commission of the act by means of any deadly weapon.

Had the indictment charged all the means by which the offence might have been committed, or that it was committed by such other means or force as was likely to produce death with like intent, which means or which force was to the grand jury unknown; or had the petit jury found the defendant guilty of the offence for which he was indicted, or generally guilty, so as to meet the charge, the court would see that the verdict was broad enough to meet the charge. But upon this writ of error we must take the verdict as it is rendered. It is entirely probable that the jury intended to find him guilty under one of the first two counts, instead of the third, and that their verdict was intended so to express their finding. This verdict might have been made definite at the time by their explanation, but it was not, and we cannot now speculate upon it. The form of the verdict must be such that all the circumstances constituting the offence must be found, in order to enable the court to give judgment; for the court cannot supply a defect in the statement made by the jury on the record, by any intendment or implication whatsoever. (1 Chit. Cr. L., 643; 4 Met., 354; 21 Pick., 505.)

An assault and battery with intent to kill, is not a felony by our statutes, nor at common law. It is only felony when committed with some deadly weapon, or with some other means or force likely to produce death. (Barb. Cr. L., 80, and authorities cited.)

If we had the power, I should like to send the case back for a new trial, but I do not think we have the power. See opinion of Bronson in People v. Taylor (3 Denio, 97).

Judgment reversed.


author: Mason, P. J.

text:
    Cortland Oyer and Terminer.
    June, 1859.
    Before Mason, Justice of the Supreme Court, and the Justices of the Sessions.
    The People v. George Saunders.
    To an indictment for rape, the prisoner pleaded that he had been convictedbefore W. B., a justice of the peace, on the oath of the prosecutrix, E. R. J., of an assault and battery upon her, and fined twenty dollars, which fine was paid by him, and that the assault and battery of which he was so convicted, was the same assaulting, beating, ravishing and carnally knowing of the said E. R. L, charged in the indictment for rape. On demurrer to such plea, it was adjudged bad, on the ground that the facts set forth in it constituted no defence to the indictment for rape.
    An acquittal upon an indictment for a felony, constitutes no bar to an indictment for a misdemeanor; and an acquittal for a misdemeanor is no bar to an indictment for a felony.
    To make the plea of autrefois convict or autrefois acquit a- bar, it is necessary that the crime charged in both cases be precisely the same; and in considering the identity of the offences, it must appear by the plea that the offence charged in both cases was the same, in law and in fact.
    This case does not come within the provision of the Revised Statutes, which makes an acquittal or conviction, on a former trial for an offence, a bar to an indictment for such offence in any other degree, or for an attempt to commit such offence.
    Where, in' a case of felony, a plea of autrefois acquit or autrefois convict is interposed and overruled, there should be judgment of respondeos ouster.

    The defendant was indicted in the Oyer and Terminer of Cortland county for a rape, and interposed two pleas of autrefois convict, to which pleas the District Attorney demurred. The first plea alleged that the defendant was convicted before William Blanchard, Usq,f a justice of the peace of the town of Truxton, on the oath of the prosecutrix, of an assault and battery upon her, the said Eunice Rebecca Johnson, and fined $20, and sentenced to thirty days’ imprisonment in the county jail, in case the said fine was not paid, and that he paid said fine; and the plea alleged that the said assault and battery, of which the said defendant was so convicted as aforesaid, was the same assaulting, beating, ravishing and carnally knowing the said Eunice Rebecca Johnson charged in the indictment mentioned, and was one and the same assault and battery, and not other and different, &c.
    The second plea differed from this only in that it alleged that the said Eunice Rebecca Johnson made complaint on oath to the said Wm. Blanchard, Esq., a justice of the peace of the town of Truxton, in said county, and said Blanchard issued his warrant against said defendant, charging him with a rape alleged to have been committed upon the said Eunice Rebecca, and which was the same identical offence charged in the indictment in this case. That defendant was arrested on said warrant, and brought before said justice, and that a full examination was had, and the said justice decided that there was no probable cause to hold the said defendant on the charge of rape, but that there was probable cause to hold him for assault and battery; and that the defendant elected to be tried by a Court of Special Sessions, and that thereupon the said defendant was put upon his trial for assault and battery, before the said justice sitting as a Court of Special Sessions, and was convicted and fined $20, &c., &c.

      A. P. Smith, (District Attorney), for the People.

      H. C. Miner, for the prisoner.
   Mason, P. J.

These pleas constitute no bar to this indictment for a felony; and acquittal, even upon an indictment for a felony, is no bar to an indictment for a misdemeanor, and an acquittal for a misdemeanor is no bar to an indictment for a felony. (2 Hawk. P. G, 35, § 5; Arch. Cr. Plead., 88.) The justice had no jurisdiction to try the felony for which the defendant is now indicted. He could not, on the examination, even pass upon the question of the defendant’s guilt or innocence. The only thing which the statute. allowed him to determine was the question whether there was probable cause to believe the defendant guilty, and this only for the limited purpose of committing him to await his trial before a court that has jurisdiction to try him, or of requiring him to give sureties to appear before such court and answer to an indictment.

The defendant was tried simply on a charge of assault and battery, as is shown by the defendant’s pleas, and was convicted of that charge.

This constitutes no defence to an indictment for a rápe. To entitle the defendant to this plea, it is necessary that the crime charged be precisely the same (1 Chitty Cr. Law, 452); and in considering the identity of the offences, it must appear by the plea that the offence charged in both cases was the same in law and in fact. The plea will be vicious, if the offences charged in the two indictments be perfectly distinct in point of law, however nearly they may be connected in fact. (12 Pick. R., 496; 1 Park. Cr. R., 182, 183; 3 Park. Cr. R., 579; Arch. Cr. Pl., 91.)

The former conviction must have been for the same identical crime. (4 Black. Com., 336; Russ, on Cr., 829, 836; 1 Park. Cr. R. 184.) In these cases the plea will be held vicious unless the first indictment was such that the prisoner might have been convicted upon it by proofs of the fact contained in the second indictment. (1 Russ, on Cr., 831; 1 Park. Cr. R., 184; Arch. Cr. Pl., 87; Rex v. Taylor, 3 Barn. & Cress., 502; 3 Park. Cr. R., 579.)

There is another reason why the pleas must be held void. The plea of autrefois convict admits the offence charged in the indictment, and as these pleas admit the crime of rape against the defendant, hefiould not be convicted of assault and battery, for the misdemeanor was merged in the felony. (5 Mass. R., 106; 9 Cow. R., 578; 1 Comst. R., 384; 1 Russ, on Cr., 50; 2 vol. Id., 550; Bouv. Law Dict., titles “Merger,” “Cr. Law;” 1 Park. Cr. R., 186; 22 Pick. R., 508; 2 Eng. Law and Equity R., 448.) The defendant cannot, upon this indictment, be tried or convicted of assault and battery. This is well settled at common law, and our statute is but declaratory of the common law (2 B. S, 702, §§ 27 and 28), which prescribes the rule for plea of former acquittal or conviction. It only applies to offences where the statute has fixed different degrees to the offence, and in such case a former trial and acquittal or conviction for any one of the degrees of such offence, shall be a bar to an indictment for such offence in any other degree, or of an attempt to commit such an offence. These demurrers to the defendant’s special pleas are sustained, and judgment given for the People thereon. The defendant was right in pleading over to this felony the plea of not guilty. (Arch. Cr. Pleading, 89, 90, 91; Rex v. Vandercomb, 2 Leach, 708; Rex v. Cogan, 1 Leach, 448; Rex v. Shaw, 2 Carr. & P., 635.) This, however, is of little consequence, as the judgment in cases of felony on such pleas is respondea ouster. (Arch. Cr. Pl., 91; 12 Hawking Cr. Law, 23 and 128; 2 Carr. & P., 634.)

Pleas overruled and judgment of respondeos ouster.


text:
    Supreme Court. Otsego General Term,
    July, 1859.

      Mason, Balcom and Campbell, Justices.
    Lewis Dibble, plaintiff in error, v. The People, defendants in error.
    On the trial of an indictment for uttering counterfeit bills or notes, it is not competent for the prosecution to prove the subsequent uttering by the prisoner of other forged bills or notes, unless it be shown that they were of the same manufacture as those charged in the indictment, or are in some way connected with the offence charged.
    The prisoner was convicted at the February term of the Otsego Court of Sessions, in 1859, of forgery in the second degree, to wit: for uttering as true, to one Newman, a certain counterfeit promissory note called a bank bill, which purported to have .been issued by “ The Westfield Bank,” a corporation duly formed under and by virtue of the laws of Massachusetts. He was sentenced to imprisonment in the State Prison at Auburn for the term of five years and two months. His counsel took exceptions on the. trial, and made a bill of exceptions, which formed part of the record of conviction. He afterwards sued out a writ of error,: and obtained a stay of proceedings on the judgment. . The writ of error, with a transcript of the record, was. sent to- this .coui;t.

      L. I. Burditt and A. Becker, for the prisoner.

      L. L. Bundy (District Attorney), for the People.
   By the Court,

Balcom, J.

The district attorney proved that the prisoner passed the counterfeit note or bill described in the indictment,- to one Newman, as genuine.. He then proved, by Smith Kinyon, that the-prisoner, a day or two thereafter, went from his residence, near Oneonta, to Catskill, and that while going there he staid over night at a tavern kept by one Stevens, and there bought a ring of a pedler, and gave him a five dollar bill to pay for it. The pedler remarked that the bill was good, and he would take it for any goods he had. A bystander said it was not good, but the pedler took it and gave the prisoner the difference in small bills and change—the price of the ring being two or three dollars. That at Steele’s the prisoner' purchased a ring of another pedler for two dollars. He gave the pedler a five dollar bill in payment therefor, and received small-bills and change from him, over and above the price' of .the -ring;-' The last mentioned pedler again saw the prisonei át Prattsville, and there said to him the bill he let him have was bad, and that a postmaster told him.it was' bad. The prisoner then said to the pedler, he would take it back, “ as he took it for good money,” and he -thereupon gave back the ring, small bills -and change to the pedler, and received the five dollar bill from him.

Kinyon could not tell the name of the bank by which the two bills the prisoner passed to the pedlers purported to have been issued. Those bills were not produced at the trial, nor was there any evidence given, except that above mentioned, to show they were forged or counterfeit.

The prisoner’s counsel moved the court to strike out the testimony of Kinyon, as illegal, irrelevant and incompetent, because the proof did not show on what bank either bill he spoke of was, or that they were counterfeit, and upon the ground that the bills were not produced, which motion the court denied, and the prisoner’s counsel excepted to the decision. The court charged the jury that the testimony of Kinyon was clearly admissible, as connected with the evidence of Isaac B. Smith, but left the question to the jury as to its importance and materiality, and whether it reflected much or little, or none at all, upon the guilty knowledge of the prisoner in passing the bill for which he was indicted. The prisoner’s counsel excepted to the charge.

Smith never saw either of the bills the prisoner passed to the pedlers, and never heard the prisoner say anything about them, or speak of having passed any such bills to any person.

The weight of authority is, that in order to enable the prosecutor to give evidence of other utterings of forged notes or bills subsequent to that charged in the indictment, they must in some way be connected with the principal case, or the notes or bills must be of the same manufacture and precisely similar. (Wharton's Am. Cr. Law, 2d ed., 233; Roscoe's Cr. Ev., 4th Am. ed., from 3d London ed., 93, 94; Cow. & Hill's Notes, 462, 463.) Greenleaf says: “It has been held that in case of subsequent facts they must appear to have some connection with the principal fact charged. Thus, in a charge of forgery, evidence of the subsequent uttering of other forged notes was held inadmissible, unless it could be shown that they were of the same manufacture.” (3 Greenl. Hv., 4th ed., § 15.)

The passing of the bills to the two pedlers by the prisoner, was in no way connected with the passing of the one to ¡Newman, for which he was indicted, and it was not shown that the bills passed to the pedlers were forged or counterfeit, except by what one of them and a bystander said, and the act of the prisoner in taking one of them back, and the circumstances under which he passed them; nor was there any proof that those bills were of the same manufacture, or on the same bank, or similar to the one passed to Newman; Hence, according to the authorities above cited, the court erred in refusing to strike out the testimony of Kinyon; and also in charging the jury it was admissible as connected with that of Smith. The testimony of Smith did not in any way connect the passing of the bills to the pedlers with the passing of the one to Newman. It only tended to show that the prisoner committed another and independent felony subsequent to the uttering of the counterfeit bill ■ or note to Newman. It should, therefore, have been struck out of the case, and the jury should have been directed to disregard it. The judgment of the Otsego Court of Sessions should be reversed, and a new trial granted to the prisoner in that court, and he should be required to appear at the next term of such court and abide its order and determination.

Decision accordingly.


author: Clinton, J.

text:
    Superior Court of Buffalo.
    November Criminal Term, 1854.

      George W. Clinton, Justice, presiding.
    The People v. Thomas O'Brien.

    It is very questionable whether surprise, founded on a mistake in law, can be a ground for a new trial. It cannot be where it arose solely from the negligence of the moving party.
    Where the defendant had been convicted of keeping a disorderly house, and on motion for a new trial, it appeared from his affidavits that the conviction was had solely upon evidence that his tenant of the basement kept that part of the house in a disorderly manner; that he, the defendant, occupied the floor above, and supposed he was only required to defend, as he did, the character of the part occupied by himself, and the affidavits did not show that he had, but left the inference that he had not, disclosed all the facts to his counsel, and did not show that he had discovered any material evidence not before known to him and within his reach: JSelA, that he was not entitled to a new trial.
    It seems that the Superior Court of Buffalo has power to grant a new trial to a defendant convicted of a misdemeanor, either on the judge’s minutes at the same term at which he was convicted, or on a case at the general term.
    Motion for a new trial. The defendant had been convicted at the last September criminal term, Justice Houghton presiding, of keeping a disorderly house, and, upon affidavits including his own, applied for a new trial. It was shown by the affidavits that he occupied the first floor of a house and his tenant the basement, and that he supposed he would be called upon to defend the character of the first floor only, and that the conviction was had only upon evidence that the basement was kept in a disorderly manner. The affidavits also stated facts tending to -show that he was not guilty of the disorderly keeping of the cellar, or accessory to it.
    ---, for the defendant.

      A. Sawin (District Attorney), for the People.

       The Reporter considers the following cases, decided by the Superior Court of Buffalo, a valuable addition to the volume. Some of them had been already in part prepared for publication, by Francis E. Cornwell, Esq., of Buffalo, when they came to the Reporter’s hands.

   Bg the Court,

Clinton, J.

The application is solely on the ground of surprise, and not on the merits. The defendant does not claim that he has newly discovered material evidence, nor that the verdict was not founded on sufficient evidence. He says, in effect, that he misunderstood the extent of the charge, and that, had he known its full extent—had he supposed that he could be convicted of keeping the cellar—he could and would have exonerated himself by proving the facts which have been sworn to on this application. Assuming that the Superior Court has power to entertain this application, and that it is properly made here, instead of to the general term, there are two objections to granting the motion.

In the first place, the alleged surprise is based upon the defendant’s mistake of law, and it is, at the least, very questionable, whether such a mistake can ever constitute surprise. But, assuming that it may, the defendant ought not to have any advantage of it, if it arose solely from his own negligence. The first duty of a client is to state his case fully to his counsel ; and it is, in general, the duty of counsel to probe the case of his client to the bottom. Can it be doubted that, if the defendant had used due care and fullness in communicating the case to his counsel, or, if his counsel had done his duty in probing the case, the defendant would have known that the facts now spread before us were material to be proven on the trial. That the defendant, or his counsel, were guilty of laches in preparing the cause, cannot be ground for disturbing the verdict. Here, however, the party does not complain of his counsel. He does not aver that he was wrongly advised, nor that he was not fully advised upon his statement of the case to counsel, nor, in fact, that he ever took the advice of counsel. Upon the facts before us we must conclude, either that he carelessly misled counsel, or that, without any disclosure of the case to counsel, and upon his own responsibility, he rushed rashly before the jury for trial, “like a horse into the battle.” He must bear the consequences, or no conviction can stand.

But, aside from this, there remains the fatal objection that the evidence adduced on the trial is not before us. Taking for granted the facts set forth in the affidavits, we cannot say but that the conviction was perfectly warranted by the evidence despite their existence. This power of granting new trials in criminal cases, for causes other than error or irregularity, if the power exists at all, is one that should be exercised with the greatest circumspection. Where the application is founded upon newly discovered evidence, or the non-introduction of evidence through surprise, or upon- surprise by false evidence, it seems to me that there can be but very few cases, if any, in which a new trial can safely be granted without a deliberate and full examination of the testimony below. The court ought to be convinced that the verdict would have been, or might properly have been, the other way, but for the surprise, or if the newly discovered evidence had been adduced.

Especially is a case requisite where, containing the evidence, as here, the application is to a tribunal differently constituted from that before which the trial was had. The defendant must show that the verdict below would have been against law or evidence, if the testimony disclosed by his affidavits had been produced before the jury, and he can show this only by a case regularly settled, unless the case is waived or a substitute adopted by the parties. (7 Wend., 331.)

Having arrived at these conclusions, it is not necessary to pass upon the other questions which were raised upon the argument, and the motion must be denied. But I deem it proper to add that the strong impression I entertained against the existence of a power in the Superior Court to grant a new trial upon the merits in a case of conviction for a misdemeanor, has been very much shaken; and to add my impression that the motion ought not to be entertained, unless it be made upon the minutes of the court at the term at which the conviction was had, or upon a case at the general term.

Motion denied.


text:
    Superior Court of Buffalo.
    October General Term, 1854.

      Clinton, Verplank and Houghton, Justices.
    The People v. James M. Fish.
    Receiving on storage for hire, or purchasing, grain by false weights, in the business of a warehouseman and merchant, was a misdemeanor at common law; the offence being now made a felony by statute, the misdemeanor is merged in the felony.
    In such a case, an indictment is bad on demurrer, which does not charge defendant’s acts and intents to have been felonious.

    It is also bad where it charges the intent to deceive and defraud “ divers citizens of the State,” but omits to name them, or to aver that they were to the jurors unknown.
    Whether it is necessary that the caption of the indictment should state that 11 the jurors were sworn, &e.,for the People of the State of New YofhandOne body of the county of (Erie),” instead of “ for the body of the county of (Erie)” ■ merely.—Quere ?

    Porm of demurrer book, on demurrer to indictment.
    Demurrer to indictment. The indictment, was found at the Oyer and Terminer, held in and for the county of Erie, in- September, 1854, and was sent to the Superior Court of Buffalo for trial.
    The indictment was at common law for buying and receiving and storing gram for hire, by false weights, in the exercise of the defendant’s business as a warehouseman. The demurrer book containing the indictment and demurrer, with the proper recitals and statements, was as follows:
    At a Court of Oyer and Terminer, held at the Court House in the city of Buffalo, in and for the county of Erie, on the eighteenth day of September, in the year of our Lord one thousand eight hundred and fifty-four, by and before the Honorable B. F. Green, one of the justices of the Supreme Court, and Zebulon Ferris and Jesse Lockwood, Esquires, Justices of the Peace, designated as members of the Court of Sessions in and for the said county. Orlando Allen, foreman, and Philip Byron, Henry Longnecker, &c., &c., [naming the grand jurors] Jurors of the People of the State of New York, in and for the said county of Brie, then and there duly impanneled, sworn and charged to inquire for the body of the said county, upon their oath present as follows:

      State of New YorJc, County of Erie, ss:

    The jurors of the People of the State of New York and for the body of the county of Erie aforesaid, upon their oath, present: That James M. Eish, on the first day of March, in the year 1854, and from thence until the taking of this inquisition, did use and exercise, at the city of Buffalo, in the county of Brie aforesaid, the trade and business of a warehouseman, and also the trade and business of receiving, storing and weighing cargoes of grain of all kinds, to wit: corn, wheat, barley and oats, from vessels, schooners, brigs, sloops, steamboats and propellers in the Buffalo creek in said city being, in his said warehouse for the purpose of storage, transhipment and purchase, and on the days and times, and at the place aforesaid, did use and exercise the trade of weighing such aforesaid cargoes of grain for the owners, consignees and carriers thereof, for certain large sums of money paid by the said owners thereof to the said James M. Eish, and did, during said times and at said place, weigh, store, receive and purchase one thousand bushels of corn, one hundred bushels of barley, one hundred thousand bushels of wheat, one hundred thousand bushels of oats; and that the said James M. Eish, contriving and fraudulently intending to cheat and defraud the People of said State, whilst he used and exercised his said trade and trades, business and businesses, to wit: on the first day of April, 1854, and on divers other days and times between that day and the taking of this inquisition, at the city aforesaid, did, knowingly, falsely and fraudulently, keep in a certain warehouse and elevator there, wherein he, the said James M. Eish, did so as aforesaid carry on his trade and trades, business and businesses, certain false weights for the weighing of aforesaid cargoes of said different kinds of grain by him as aforesaid received, stored, purchased and weighed, which said weights were then and there, by artful and deceitful contrivances, so made and constituted as to cause every quantity of said different kinds of grain received in said warehouse and elevator, and weighed by said false weights, thereby to appear of less weight than the real and true weight, by one-twentieth part of such true weight; and that the said James M. Fish, well knowing the said weights to be false, as aforesaid, did then and there, to wit: on the several days and times aforesaid, at the city and in the county aforesaid, willfully, falsely and fraudulently, into his said warehouse and elevator, and with the aforesaid false weights, divers quantities of aforesaid different kinds of grain transferred from aforesaid vessels, schooners, brigs, steamboats and propellers, into his said warehouse and elevator, in the way of his aforesaid trade and trades, business and businesses, weigh, receive, store and purchase, to wit: one hundred thousand bushels of corn, one hundred thousand bushels of barley, one hundred thousand bushels of wheat, one hundred thousand bushels of oats, and which last aforesaid corn, wheat, barley and oats, by reason of their being weighed by said false weights, were then and there very much deficient of their true and just weight, to the great damage and deceit of the People of said State, to the evil example of all others in like cases offending, and against the peace of the People of the State of Mew York and their dignity.
    ALBERT SAWIN, District Attorney.

    Indorsed “a true bill.”
    Orlando Allen, Foreman.

    Which bill being presented to the said Court of Oyer and Terminer by the said jurors, it was on the twenty-day of September aforesaid, prayed by the said Albert Sawin, district attorney, as aforesaid, that the said bill might be filed in the said court before the said justices; and it was ordered by the said court that said bill should be filed in said court, and it was done accordingly.

      And thereupon, it was prayed by the said Albert Sawin, on behalf of said People, that the said bill might be sent to the Superior Court of Buffalo for determination, and it was done accordingly.
    And hereupon, the said James M. Fish appears in his own proper person, in the said Superior Court of Buffalo, before the justices thereof, on the second day of October, 1854, and the said Albert Sawin, who prosecutes for said People, also comes and brings into the said court the said bill; and the said James M. Fish prays that the same may be read to him; and it is read to him; and thereupon the said court orders that said bill be filed in said Superior Court, and it is done accordingly.
    And the said James M. Fish is thereupon ordered by said court to answer said bill, and he answers the same accordingly, and says that there is no such court as the Superior Court of Buffalo, which, by the laws of this State, can or ought to take cognizance of the said bill and the matters therein alleged.
    And he also says, that if the said court can or ought to take cognizance of the said bill and the matters therein alleged, then, he says, that said indictment and the matters therein contained, in manner and form as the same are above stated and set forth, are not sufficient in law, and that he, the said James M. Fish, is not bound by the law of the land to answer the same, and this he is ready to verify.
    Wherefore, for want of sufficient authority in this behalf, and for want of a sufficient indictment in this behalf, the said James Fish prays judgment, and that the court here may not take cognizance of said bill, and that he may be dismissed and discharged by said court, from the said premises in said indictment specified.
    And hereupon, the said Albert Sawin, who prosecutes for the said People in this behalf, says that this court has the power and the authority by law, and ought to take cognizance of the said bill and the matters therein alleged.
    And he also says that the said indictment, and the matters therein alleged, in manner and form as the same are above stated, are sufficient in law to compel the said James M/Fish to answer the same; and this the said Albert Sawin, who pro- ' secutes as aforesaid, is ready to verify and prove the same, as the court shall direct and award. Wherefore, inasmuch as the said James M. Fish hath not answered to the said indictment, nor hitherto in any manner denied the same, the said Albert Sawin, for the said People, prays judgment, and that the said James M. Fish may be convicted of the premises in the said indictment specified; but because, &c.

      D. Tillinghast, for the defendant.
    1. The court has no jurisdiction of this case.
    2. The grand jury was never sworn to inquire for the People of the State of New York. This is a defect.
    3. The indictment is defective in not disclosing the means by which the alleged cheat was effected.
    It is not enough to say that it was done by false weights, and that those weights were artfully and deceitfully contrived.
    The facts of the act and deceit should be alleged. (1 Ohitty Orim. Law, ed. 1836,226; 9 Cowen R&p., 586; 5 Term Rep., 624.)
    4. In relation to the act and deceit, no scienter is alleged.
    5. It is defective because it does not give the name of any individual who was defrauded.
    6. It does not show how the fraud was committed, nor allege that their names were to the jurors unknown.
    7. It does not state in what particular character defendant got possession of the grain, whether as bailee or purchaser. It is defective for that reason.
    8. If any person is charged with being defrauded, it is the defendant.
    9. It is alleged that defendant intended to cheat the people, but it does not tell how it was to be done or intended to be done.
    If the indictment is uncertain as to whether defendant was bailee or purchaser, then it is bad for uncertainty. (2 Burr., 1127.)

      Albert Sawin (District Attorney), for the People.
   By the Court,

Clinton, J.

The defendant denies that there is any such court as the Superior Court of Buffalo, which, by the laws of this State, can or ought to take cognizance of” this indictment. The court is organized under an act of the Legislature, and the counsel cannot expect us to deny our right to exercise the powers we are daily exercising. The precise point of the objection is not explained, and it can hardly be considered as addressed to us.

It is claimed that the indictment is not warranted by the common law. The facts that no instance of such a prosecution is on record, and that no assertion that the acts averred are a common law offence is to be found in any treatise or book of law, are undoubtedly well calculated to produce doubt, but they are not conclusive. The common law lays down general as well as particular definitions of crime—it defines classes of crime, as well as instances of the class, the species as well as the variety—and whatever act, or series of acts, comes within the general definition, or class, or species, must constitute a particular offence. The better general definition of indictable cheats and frauds at common law, is “ the fraudulent obtaining the property of another by any deceitful and illegal practice or token (short of felony), which affects or may affect the public.” Selling by false weights or measures, comes within the definition. The fraudulent weight or measure, is a false and deceitful token, which may injuriously affect the public, and the practice of selling by it does so affect it. Buying, or receiving and storing for hire, by false weights or measures, in a recognized and most important department of commercial business, is plainly within the spirit of the definition, and these practices are equally if not more injurious to the public than the selling or retailing of property by such false token. It may be true, that when the first indictment for selling by false weights was sustained, the mischief of buying or receiving by them was not felt by the public; but from the growth of commerce, either must now be, if a practice, one of a most alarming nature, well worthy of the most decided reprehension of the law. I am opinion that an indictment will lie for this offence.

If, however, this misdemeanor at common law is now a statutory felony, the misdemeanor is merged. False weights are false tokens. They were held to be so long before the statute of cheats. The revision of 1813 (1 B. Z., 410, § 1), provided for cheats by false pretences only; but the Revised Statutes broadened the definition so as to include the common law offences, and declared them all felonies. Those statutes now provide that “ every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by any other false pretence,” “ obtain from any person any money, personal property, or valuable thing,” shall be guilty of a felony. This statute increases the number of indictable cheats, and makes them felonies. I do not see how any cheat can now be regarded as a mere misdemeanor; and the indictment is for felony.

It is bad, because it does not charge the acts and intents of the prisoner to have been felonious.

It sufficiently describes the instruments of the cheat and the manner of cheating thereby.

But an indictment must, as an almost universal rule, give the accused notice of all the particulars of the crime charged, which may aid him in preparing for his defence, or show a valid excuse. Hence, when a fraud is charged, the person defrauded must be named, or, in excuse, the grand jury must aver that he is to them unknown. In this indictment it would have been sufficient to charge only one receipt by false weights, in fraud of a single person named. So it has been held sufficient to charge sales to divers persons to the jury unknown. Here the charge is of receipts from divers persons, and they are not, nor is any one of them named, nor are they averred to have been to the jurors unknown.

The caption of the indictment is probably sufficient, but I am not clear that it is so. The indictment was found in and comes to us from another court, and the caption is therefore, I think, a part of it. If it be necessary to the due organization ’of the grand jury that the jurors be sworn to inquire “ as well for the People of the State of New York as for the body of the county of Erie,” and they were sworn only “to inquire for the body of the county of Erie,” there would seem to be a strong indication of a substantial irregularity which has not been waived by pleading, and it may follow that the defect is not one of those defects which our statute requires us to disregard, as “a defect or imperfection in matters of form, which does not tend to the prejudice of the defendant;” and the public prosecutor must excuse us for suggesting that the safer course is to adhere to the immemorial form of the caption.

Judgment for defendant.


text:
    Superior Court of Buffalo.
    December Criminal Term, 1854.

      George W. Clinton, Justice, presiding.
    The People v. Jacob Travis.
    Perjury cannot be assigned of a false oath to a protest taken before a notary public, as part of the preliminary proofs in case of a marine loss. The oath in such a case is a voluntary and extra-judicial proceeding.
    Motion" for leave to enter a nolle prosequi, with a view to bring up the question of the sufficiency of the indictment.
    The indictment alleged that on the 16th day of November, 1853, the schooner Hope, of which the defendant was master, was wrecked and lost on Lake Erie; that one Samuel Watson, was owner of the schooner, and had before the time of the loss procured a policy of insurance to the amount of $600, to be executed for his benefit by the Atlas Mutual Insurance Company ; that the defendant, on the 21st day of November, at Buffalo, before Samuel T. Atwater, a notary public, swore, as master, to the truth of a protest setting forth a history of the circumstances leading to and accompanying the loss, which protest is set forth in, and parts of it are negatived by, the indictment, which concludes with the general allegation that-the defendant did, in manner aforesaid, &e., commit willful and corrupt perjury.

      A. Sawin (District Attorney), for the People.
    --- ---, for the defendant.
   By the Court,

Clinton, J.

An indictment for perjury must set forth “ the substance of the offence,” and that the matter sworn to and alleged to have been false, was material, must be shown by the pleading. There can be no materiality in the matter sworn to, unless it was pertinent to some trial or proceeding warranted by law, and the indictment must set forth such trial or proceeding. “A party claiming goods seized under an execution, made an affidavit stating that he had pur chased and paid for them, and was indicted for peijury, but as the indictment, did not state that any application had been made for an interpleader rule, it was holden bad, for it did not appear that any proceeding was pending to which the affidavit was applicable. So in other cases where the false oath is made in the course of a suit, the indictment must show that a suit was then depending; if it be preliminary to a suit, and in a matter of which the court has jurisdiction, the indictment must show it.” (3 Archbold Cr. L., 593, 594.)

Admitting that the notary had jurisdiction to administer the oath, and that the defendant is indictable, and indictable in a State court for perjury, in swearing to the protest, still the indictment is clearly bad, because it does not show any pending proceeding to which the protest was applicable, nor that the protest was preliminary to any suit or proceeding. It does not even show that there was any outstanding policy of insurance covering the loss. It avers that Watson, the owner, had “before that time ” procured an insurance on the vessel, but it does not allege that the insurance was outstanding, nor that Watson had "commenced or contemplated an action upon the policy, nor that the protest was made as parcel of the preliminary proofs required by the terms of the policy, or by the custom of merchants, nor that it was intended or could be used for any purpose whatever.

I might here dismiss this matter, but at the request of the parties I will give my opinion upon other and more important questions involved in this prosecution.

Assuming that perjury may be predicated of a “ protest,” the district attorney claims that the case falls within our statute of perjury. I do not think so. The general words of that statute must be restrained by general principles of law. The words include all perjuries committed in any territory, and before any tribunal or officer, provided the oath is lawfully required. The cases are very few in which a government punishes crimes committed out of its territorial jurisdiction; and a State never recognizes as a crime a breach of the laws of another State or jurisdiction. We, perforce, leave to the federal courts the vindication of the laws of the United States within our borders, and do not usurp the power to punish perjuries or robberies committed in Ohio. Crime is essentially local, and is defined and punished only by the law of the place where it was committed.

The notary public before whom the oath in question was taken, was one duly appointed in pursuance of the laws of this State, and acting within its territory. Our statute confers no authority upon a notary to administer an oath. It confers some powers and enumerates others derived from other sources. It declares that “notaries public” appointed under our law, “ have authority to demand acceptance and payment of foreign bills of exchange,” &c., “ and to exercise such other powers and duties as by the law of nations, and according to commercial usage, or by the laws of any other State, government or country, may be performed by notaries public.” (2 B. S., 283, §§ 44, 45.) How, all this is simply declaratory and permissive. A notary public is an officer recognized by the law of nations. That law vests him with certain powers, and his seal is taken notice of by foreign courts. Our statute declares our notary public to be a notary public within the purview of the law of nations. Other States, governments and countries may, by law, vest certain powers in notaries public, in consideration of their public character, and the power of authentication attributed to their seals. A sister State may, for instance, confide to them the power of taking, within their theatres of action, proofs of conveyances to be recorded, and of instruments and depositions to be used in evidence within its territory. Our law says that our notary may exercise these powers; but they are powers conferred by and exercised under foreign laws.

The same remarks apply to the powers and duties which, “ according to commercial usage,” may be performed by notaries public. Our law permits our notaries to perform them. By commercial usage, this protest could be made before a notary public, and by the same usage, he could administer the oath and authenticate the protest; but our law did not require the oath, nor was it, under our law, “necessaryfor the prosecution or defence of any private right, or for the ends of public justice. (2 JR. 681, § 1, sub. 2.) This subdivision of the statute definition of perjury, refers to a class or classes of cases widely different from this. But, if it be comprehensive enough to cover this case, then where is the evidence in the indictment of the existence of any private right or claim to the prosecution or defence of which the sworn protest could be applicable ?

But such a protest is a purely voluntary act. The master may properly make it for the information of his owners, or the satisfaction of the underwriters, in case of a loss by perils of the sea. He cannot, however, be required to make it, nor can the owner, “by commercial usage,” be required to procure it. If made, it forms a very proper portion of the prehminary proofs of loss. As a voluntary statement, whether sworn to or not, it may be important evidence against the master for the owner, or for the underwriter in the owner’s action on the policy, but it is never, under our law, evidence for the owner against the insurer.

I am of the opinion that the crime of perjury cannot, under our statute, be founded upon such a protest, and the district attorney is advised to enter a nolle prosequi.

Motion granted.


text:
    Superior Court of Buffalo.
    December General Term, 1854.

      Clinton, Verplank and Houghton, Justices.
    The People v. Barnhardt Krummer.
    “ I have bought of Earnhardt Krummer two frocks for $7. Ask your employers for the money, and let him have it.” (Signed) “ Mrs. Williams.”
    B. K. was indicted for forging this instrument, and for uttering it to Samuel Williams, Jr., (a son of Samuel Williams,) as the act of his mother: Held, that the instrument, in connection with the extrinsic facts, was within the statute of forgery, and that an acquittal on the indictment on the merits, was a bar to a subsequent indictment for obtaining the money from S. W., Jr., by the false pretence that the instrument was true.
    To constitute forgery of an instrument or writing, it is not necessary that the party in whose name it purports to be made should have the legal capacity to make it, nor that the person to whom it is directed should be bound to act upon it if genuine, or have a remedy over. It is the felonious making and uttering of a false instrument as true in fact, which constitutes the crime.
    The same rule of pleadihg applies to criminal and to civil cases, that the party committing the first fault shall have judgment rendered against him.
    Therefore, in the case stated of the indictment for false pretences, where the People demurred to the defendant’s plea of a former acquittal, and it appeared that the indictment averred the money obtained to be the money of Samuel Williams (the father), but did not aver a balance duo the son for wages, or show otherwise how it was his money: Held bad, and that, irrespective of the question of the sufficiency of the plea, the defendant was entitled to judgment.
    Demurrer to plea of former acquittal. The prisoner had been indicted in this court, and charged, first, with having forged an instrument in writing not directed to any person, which instrument was in these words:

      “I have bought of Earnhardt Krummer two frocks for $7. Ask your employers for the money, and let him have it.
    “ Mbs. Williams.”
    And, secondly, with having uttered such forged instrument as true, with intent to defraud Samuel Williams. He was tried and acquitted. He was afterwards indicted for having by false pretences, of which the representation of this instrument as true was the main ingredient, obtained $7 of Samuel Williams, Jr. To this indictment he pleaded the former acquittal in bar, and the case came before the court on his joinder to the district attorney’s demurrer to the plea.

      A. Sawin (District Attorney), for the People.
    --- ---, for the defendant.
   By the Court,

Clinton, J.

The law distinguishes, defines, and names different offences. One definition cannot comprise two distinct offences. The uttering of forged paper for value, and with a felonious intention to defraud, cannot be the felonious obtaining of money or property by a false token or pretence. It may well be that the prisoner was acquitted upon the ground of a variance between the indictment and proof, or upon an exception to the form or substance of the indictment ; and, if so, he may be indicted anew for the same offence, for nothing but an acquittal upon the merits and the facts, can shield him from a second indictment for the same crime. (2 B. S., 701, §§ 24, 25.) If the instrument is not within the statute of forgery, he never could have been legally liable for forgery in making or in uttering it, and whether acquitted or convicted upon such a charge, remains liable to the indictment before us If the instrument was within the statute, he cannot, under any circumstances, be held liable, under the statute against cheats, for a fraud perpetrated by the use of it.

The English statutes name the instruments, the forgery of which they denounce. The better opinion seems to be that our statute was intended to include all the instruments so named, and all writings which, upon their face, were likely, if false, to defraud, in its sweeping definition. It includes every “instrument in writing, being or purporting to be the act of another, by which any pecuniary demand or obligation shall be, or purport to be, created, increased, discharged or diminished, or by which any rights, or property whatever, shall be, or purport to be, transferred, conveyed, discharged, diminished, or in any manner affected,” “ by which false making, forging, altering, or counterfeiting, any person may be affected, bound, or in any way injured in his person or property.”

We are never called upon to determine whether, in legal construction, the false instrument, or writing, is an instrument of a particular name or character. It is a matter of perfect indifference whether it possesses or not the legal requisites of a bill of exchange, or an order for the payment of money, or the delivery of property. The question is whether, upon its face, it will have the effect to defraud those who may act upon it as genuine, or the person in whose name it is forged. It is not essential that the person in whose name it purports to be made should have the legal capacity to make it; nor that the person to whom- it is directed should be bound to act upon it if genuine, or have a remedy over. Ho man is bound to receive a bank bill in payment, and yet forging a bank bill is felony. So is forging a bill purporting to be of a bank which has, in fact, no existence. Though all the parties to a bill of exchange are purely fictitious, if it be passed as genuine, it is regarded by the law as a forgery. The law looks only to the falsity of the instrument, and the fraudulent use of it as genuine. But if I err in this, I err only to this extent: that though where the parties to it are fictitious, there can perhaps be no forgery of the instrument, yet still the felonious uttering of it as true must be within the statute. A married woman’s request to her husband for money by the bearer may surely be forged; and so may an infant son’s request to his father or guardian, for a remittance, or a coat.

I have no doubt that, upon its face, the instrument is within the statute. Mrs. Williams, whose act it purports to be, must be taken to be a natural person other than Bamhardt Krummer, the forger of it. It is not formally directed to any person, but, on its face, it is evidently intended to be presented to some person other than the drawer, or Krummer, the payee; it requests him to ask his employers for the money and let Krummer have it, and gives as the reason for the request, that she owes the money to Krummer for two frocks which she has not paid for. It is an order for the payment of money. Promissory notes, orders for the payment of hioney, bills of exchange and checks, have always been held to be within the statute, though they do not create, but merely evidence indebtedness. There a “ pecuniary demand ” was apparently “ created,” and whether it was justly, legally or effectually created, is a matter of indifference, so long as a third person could be affected, or in any way injured thereby in his person or property. It is evident that Mrs. Williams, and the person for presentation to whom the instrument was designed, might well be injured by thev false making of it. Whether in fact it had been, or could be used to defraud either, must depend upon extrinsic circumstances not necessary to be pleaded.

The facts are that the Mrs. Williams intended by the signature, was, at the time of the forgery and of the uttering, the wife of one Samuel Williams, and the mother of one Samuel Williams, Jr., a minor, then at work for others for wages. The order was presented to the son, as the request of his mother, was capable of inducing him to honor it, and he did honor it. The fraud was perfected and injured the son or the father in his property. I cannot avoid the conclusion that the prisoner was liable to punishment, under our statute, for forging this paper, and for uttering it as true. He cannot, therefore, be hable to punishment for a distinct felony—that of obtaining money by uttering the paper and falsely pretending that it was true.

If my brothers should be of opinion that this paper is not within our statute of forgery, or deem it expedient to postpone passing upon the question directly raised by the demurrer, we may inquire into the sufficiency of the indictment before us, for I have no doubt that the rule that judgment on demurrer must be given against the party who commits the first substantial error in pleading, is applicable to criminal as well as to civil actions. The indictment charges that Krummer made the false writing in question (which averment is surplusage). The writing requests Samuel Williams, Jr., (who is shown by the indictment to be the minor son of Samuel Williams,) “ to ask his employers to let him have the money, and give it to him.” The indictment then avers that Krummer presented the writing as true to the son, representing that his mother had signed it, and wished him “ to obtain seven dollars from his employers and give it to him;” and that the son, believing the representations, “ did procure from his employers the said sum of seven dollars ” “of the proper moneys, &c., of the said Samuel Williams ” (the father), and that so the said Krummer did, feloniously and by these false pretences, obtain the said money, being the money of the said Samuel Williams. But the indictment does not show how the moneys so obtained were the property of Samuel Williams (granting that he was entitled to the earnings of his son), because it does not aver any indebtedness of the employers for such earnings. If the paper was false, and the payment was made on the credit of it by the employers, it was made to their own loss. It is not averred that the son was working for wages, nor that anything was due from them, and an authority from the father, tó either the son or the mother, to borrow money for him, or from the father to the mother to authorize the son so to borrow, is not to be implied from their relations to each other, nor is it averred; and if the money was borrowed without such authority, it is not shown how it could be the property of the father. The facts averred show that the money, falsely obtained. was the property of the employers, and not of Samuel Williams, and I think that the indictment is therefore bad, and that the prisoner is entitled to judgment.

Judgment for the defendant.