author: Davies, J.

text:
    Noakes v. The People.
    The making a counterfeit order for the delivery of property, in the name of a third person, is forgery under our statute (2 R. S., 673, § 33), though the paper be not addresáed to any one.
    The distinction between our statute and the English, in this respect, stated, per Davies, J.
    The Meriden Outlery Oompany.is a sufficient designation of the body; partnership or persons intended to be defrauded. It 'appearing on the trial that a company did business under that name, and was defrauded, it is immaterial whether it was or was not incorporated, or what was its constitution. It is enough to show an existing body of peisons, capable of being defrauded.

      A refusal to instruct the jury to disregard the 'charge that the prisoner intended to defraud persons unknown, for variance from the evidence, is right when there is no evidence on the trial as to what the grand jury knew on the subject.
    Error to the Supreme Court. The plaintiff in error was convicted, in the Mew York General Sessions, of the crime of forgery, and that conviction was affirmed at the general term of the Supreme Court. The first count of the indictment set out the forged instrument in writing, in these words:
    “Please send, through bearer,
    6 doz. 476 table knives, -6 doz. 476 dessert knives,
    6 ’ “ 477 “ “ 6 “ 477 “ “
    6 “ 435 “ “ 6 “ 435 '“ “
    “ Charge, and send bill to
    “ W. I. E. Daily & Co.
    “Please give us the lowest price. We will send another order.”
    It was averred in the indictment that said instrument was forged and counterfeited, with intent to injure and defraud the Meriden Cutlery Company, and divers other persons to the jurors unknown, The second count charged1 the prisoner with uttering and publishing, as true, the said false, forged and counterfeited instrument, with intent to injure and defraud the said Meriden Cutlery Company, and divers other persons to the jurors unknown. The prisoner’s counsel requested the court to charge three propositions: .First, that the instrument set out in the indictment was not on its face the subject of forgery; second, that the Meriden Cutlery Company could not be regarded as the subject of an intended fraud by the prisoner, in the making or uttering this instrument; third, that, if the grand jury at the finding of the indictment knew, and the petit jury at the trial knew, from the testimony, who the prisoner intended to defraud, in the making and uttering this instrument, then the charge in the indictment, that the prisoner intended to defraud “ divers persons to the jurors unknown,” must be disregarded for variance from the evidence. The court refused so to charge, ahd to each of the refusals the prisoner excepted.

      Sidney H. Stuart, for the plaintiff in error.

      S. B. Garvin, for The People.
   Davies, J.

The only questions presented for consideration upon this writ of error are, whether the refusals to charge were correct or not. They will be considered in the order presented to the court. It is insisted on, by the counsel for the prisoner, in’support of the first request to charge, that the instrument set out in the indictment is not, upon its face, the subject of forgery, as it is not addressed to any one. If it be essential that an order or request for the delivery of goods, to make it the subject of a forgery, should, on its face, be directed to a particular person, there then would, doubtless, be force in this objection. A reference to the language of the section of the statute, would seem to indicate that there -is not much force in this argument. It declares that “ every person who, with intent to.injure or defraud, shall falsely make, alter, forge or counterfeit * * * any instrument in writing, being or purporting to be the act of another,1 by which any pecuniary demand or obligation shall be, or shall purport to be, “created, increased, discharged or diminished, or by which any rights of property whatever shall be or purport to be transferred, conveyed, discharged or 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, upon conviction thereof, shall be adjudged,” &c. (2 R. S., p. 673, § 33.) It is averred, in the indictment, that this instrument was in writing; it purported to be the act of Daily & Co., and, by which, it purported to create a pecuniary demand or obligation by them; and, in addition, the property of the person accepting and acting in conformity with the request contained therein, would be transferred and conveyed. It therefore falls directly within the language of the section of the statute, thus far considered. As a further requisite of the instrument, it is declared, that by it, if the same were genuine and true, any person might be bound, affected or in. any way injured, in his person or property. If the instrument had been genuine, Daily & Co. would have been bound thereby, and affected in their property; and, if genuine, the person accepting and acting in conformity therewith would also have been affected and injured in his property. The paper under consideration would, therefore, seem to fall within the very words of the statute, and is precisely of that character which the legislature, by the forgery of, and the passing and uttering of which, intended to subject the offender to indictment and punishment.

Cowen, J., in People v. Stearnes (21 Wend., 409), discusses fully the cases and the doctrine relating to the crime of forgery, and arrives at the conclusion that an indictment for forgery is good, if in it be set forth the instrument or .writing alleged to have been forged, averring it to have been falsely made, with the intent to injure and defraud some person or body corporate, provided the instrument be such as on its face shows that the rights or property of such person or body corporate "may thereby be injured or affected. In that case, the prisoner was indicted for forging an order, directed to the cashier of the Union Bank, purporting to be signed by the cashier of the Bank of Kentucky, requesting the delivery, of certain plates of the latter bank to certain persons mentioned in the order, with intent to defraud the Bank of Kentucky, and divers other persons to the jurors unknown'. CowE$r, J., says, the inquiry is, whether the order was apparently available to transfer the plates of the Bank of Kentucky from the custody of their depositary to the hands of another. If so, the case is brought literally within the statute. He adds: Whatever doubt might have existed at common law, whether it were to be deemed a mere false token, coming in as the ingredient of a criminal cheat, or a fraudulent "forgery, which was in -itself a crime, all difficulty is removed by the statute. Every instrument in writing which may affect property — for example, an order, a letter, or a- mere license — is made the subject of a felonious forgery. The indictment must show the forgery of an instrument, which, on being described, appears on its face naturally calculated to work some effect on property.” These views met the approval of the Chancellor, in the same case, in the Court of Errors (23 Wend., 637), where he says: “ The legislature, by the thirty-third section of the article of the Revised Statutes, relative to forgery, made a sweeping provision, which unquestionably embraces every other forgery of a writing, purporting to be the act of another person, which was by the common law a misdemeanor or a criminal offence; that is, every other forgery by which it is possible that any individual, or body politic or corporate, can be injured in any way, in his person or estate.”

The Revisers, in their notes to this section, allude to the provisions of the Revised Laws, which contained an enumeration of a great number of instruments specifically described as" the subjects of forgery. They say: “It has given •' iiasion to many questions and decisions upon cases falling within the spirit and meaning of the act, but not within its terms. * * •In principle, there can be no difference, in the injury to society or to an individual, or in the degree of moral turpitude, between the forgery of one instrument or another, by which the property, rights or interests of any one are affected. To avoid cavil: to reach every case of forgery that has ever been committed, or that ever can be committed; and to afford a definite and distinct rule, the preceding section has been prepared.’) With these lights before us, we can be at no loss to determine whether the paper under consideration falls within the language and intent of the statute. That it affects the rights and interests of property, cannot be doubted. That, if genuine, itworked.a transfer of the property therein described, by whomsoever might be the owner and possessor thereof, to the persons signing the request for the delivery of the same, is too clear to be questioned. .It is just such an instrument, therefore, as is embraced by the statute. On jts face, it was sought to work a transfer of the property therein described, whosoever might be the owner and possessor thereof. It manifestly contemplated presentation thereof to the person having that identical property in possession, and to defraud him of his property, by obtaining possession thereof. “ It is the fabrication, with the intent to defraud; and the crime shall not be excused, because the offender may have committed a blunder in seeking his object." It is apparent that he knew who had the goods which he sought to obtain. The description of them in the instrument shows that he was aware they were in existence somewhere; and the fact that the paper was presented to the Meriden Cutlery Company, and the goods obtained from it, equally shows that the paper was concocted for the purpose of defrauding that Company. I am unable, therefore, to conceive any reason why the instrument would have been more perfect if it had stated on its face that it was to be presented to that Company. It was, of course, to be presented to it, as it had solely the goods described therein. There can be no doubq r think, that this objection is entirely untenable. The cases in England to which we have been referred, have no application to an. indictment under our statute. Clinch's case (2 Leach, 611), was an indictment under the statute of 7 Geo. II, chapter 22, for forging a warrant, or order, for money or .goods. The paper forged was in these words: “Please send by the bearer 8 lbs. of that whorpe, Corn Market. L. De le Mockex." Baron Perrys", in delivering the opinion of the judges, says, the order in the indictment was not directed to any person whatever, but merely expressed a desire that eight pounds of silk should be delivered to the bearer of it, without any direction from whom it was to be received. On this ground, the judges were of the opinion that this was not a warrant or order within the statute. So, also, the case of Rex v. Cullen (5 Car. & P., 116). The prisoner was indicted under the statute of 1 William IY, chapter 66, section 10, which declared if any person should forge, or utter, any warrant, order or request for the delivery or transfer of goods, with intent to defraud any person whatsoever, such offender shall be guilty of felony, &e. The prisoner was indicted for forging a certain request for the delivery of goods, in these words: “Per bearer, two 11-4 superfine counterpanes. T. Davis, E. Truell.” The indictment also contained a coqnt calling it an order. ' And the fifteen judges held that it was neither an order nor request within the meaning of the statute. It was not an order upon any one, nor a request to any one. It was, therefore, neither an order nor a request. But, as we have seen, our statute is broad and comprehensive, purposely omitting the enumeration or specification of the instruments which may be forged, and adopts the designation only of “ any instrument.” The language thus used was intended to cover every case of forgery that could be committed, and put an end to all question whether the particular paper forged was embraced by or specially enumerated in the statute. It is sufficient that the paper or instrument be of such a character that, by its use, another may be deprived of his property, or by which a pecuniary liability might be created.

The second exception is on the refusal to charge that the Meriden Cutlery Company could not be regarded as the subject of an intended fraud by the prisoner in the making or uttering this instrument; and the exception to that portion of the charge which stated that the Meriden Cutlery Company might properly be regarded as the subject of fraud. " It had been proven.on the trial, without objection, that the goods obtained on this paper writing were those belonging to and manufactured by the Meriden Cutlery Company; that said Company was located in the State of Connecticut, and was organized there in the year 1855, and- had an agency in the city of New York, where said instrument was presented, and where said goods were obtained thereon.

It is provided by the Revised Statutes (2 R. S., p. 675, § 46), that wherever “ an intent to defraud is required to constitute forgery, it shall be sufficient if such intent appear to defraud the United States, any State or Territory, any body corporate, any county, city, town or village, or any public officer in his official capacity, any copartnership or any one of such part ners, or any real person whatever.”

The indictment in this case charged that the instrument was forged and uttered with intent to defraud the Meriden Cutlery Company. In stating this intent to defraud, it is sufficient to describe the party intended to be defrauded, with reasonable certainty. (2 Russell on Crimes, 367.) And in Lowel's case (1 Leach, 248; 2 East. P. C., p. 990, § 60), the indictment alleged an intent to defraud Messrs. Drummond & Co. by the name of Mr. Drummond, Charing Cross; and the judges held that it was not necessary to describe the party meant with more particularity; for if any person could be intended from the words, who that person was, and whether he was the object of the meditated fraud, were matters for the consideration of the jury.

If that Company was a body corporate, or a copartnership, then the averment is within the language of the section of the Revised Statutes above quoted. The proof, as set out in the record, would seem to show that it was either a body corporate or a copartnership; and if either, it is quite immaterial which the proof made it out to be. In the case of De Bow v. The People (1 Denio, 9), the prisoner was convicted of an intent to defraud the Bank of Warsaw; and the indictment contained the averment, that he had in his possession certain forged bank notes, with intent to defraud the Bank of Warsaw. The prosecution, on the trial, sought to show that such a corporation did exist, formed under articles' of association under the general banking law of 1838. But the Supreme Court held that law to be unconstitutional, and that it followed that there was no such legal being as the Bank of Warsaw to be defrauded, and that the defendant had been improperly convicted. The principal element of this decision was overruled in Gifford v. Livingston, decided by the Court of Errors. (2 Denio, 380.)

It is, however, well settled that if in truth there was not any such Company, or if it never had any legal existence, the averment in the indictment in this case is sufficient. It is sufficiently broad to reach the individual members of the Company, or its agent in New York, or the persons whose names were falsely signed to the order, as they would all be included in the description “of divers other persons to the jury unknown.” (People v. Stearns, 23 Wend., 634.) In the case of the People v. Peabody (25 Wend., 472), the prisoner was indicted and convicted of the crime of forgery.» The indictment alleged that the prisoner had in his possession notes purporting to be issued by the Bank of Warsaw, with the intention to utter the same as false, or. to cause the same to be uttered, with intent to injure and defraud the said Bank of Warsaw, George Howell, Walter Durkee and others.. The circuit judge charged the jury, that it was immaterial whether there was or not such a bank in existence as the Bank of Warsaw. The conviction was affirmed in the Supreme Court, and, in giving its opinion, the doctrine is laid down that there must be a real, existent body shown, capable of being defrauded.' That in that case, this was shown by the articles of association creating the institution, under the general bank law. That it was not important to prove that the bank had commenced business; it is enough that it was in a condition in which it might be prejudiced by the act of the prisoner. The proof set out in the bill of exceptions in the present case shows the existence of the company mentioned in the indictment;' that it had property, that it conducted and carried on business in •the city of New York, and that it was actually defrauded by the act of the prisoner. Whether or not its corporate existence was legally established on the trial does not appear, or that it was made a question. It was proved that such a company had an existence, had property and was defrauded, and it could not have been necessary to have proven more. This Company was, therefore, capable of being defrauded, and might be the subject of a fraud. The exception, it may be here suggested, assumes the existence of the Company, and, in fact, only presents the question whether a company can be defrauded. Webster defines the word company to mean a firm, house, or partnership, or a corporation, as the East India Company, a banking or insurance company. . Whichever of these meanings we attribute to the word as used in this indictment, there would be a sufficient and adequate designation of the intent to defraud, within the meaning and language of our Revised Statutes. We think, therefore, the second exception taken was properly overruled, and that the court properly charged that the Meriden Cutlery Company might rightfully be regarded as a subject of fraud. There remains to be examined the third exception, taken on the refusal to charge that, if the grand'jury, at the time of finding the indictment, and the petit jury, at the time of the trial, knew from the testimony who was to be and was defrauded, in the making and uttering this instrument, then the charge in the indictment that the prisoner intended to cheat and defraud certain persons, to the jury unknown, must be disregarded for variance from the evidence.

Several answers may be made to this request to charge, which conclusively show its unsoundness. In the first placa the exception covers the whole proposition, and if any portion of it should not have been charged, it must fail. How it is clear, that what the petit jury knew at the time of the trial, could and should have had no bearing on the form of the indictment, as to what was omitted or inserted therein. The proposition evidently meant to embrace the idea that if the grand jury knew at the time they framed the indictment, who the prisoner intended to cheat and defraud, and did not so state in the indictment, it was error to show on the trial who was actually defrauded.

We'see no force in this request or error in the refusal to charge as requested. We have already seen, from the rule laid down by the judge in.Lovel’s case, that it is not necessary to the indictment particularly to designate the party meant to be defrauded. It is essential to aver that some real person or existent body was defrauded, or that the intent existed to defraud some such, and if any person could be indicated from the words used in the indictment, who that person was, and whether he was the meditated object of the fraud, are matters for the consideration of the jury on the trial. On the assumption that the request related solely to the knowledge of the grand jury, then the request was clearly erroneous, as it assumed that the grand jury had knowledge, which nowhere appeared, and it would clearly have been error to have charged what had not appeared on the trial. There had been no evidence given as to what the grand jury knew on the subject, and .the judge would not have been authorized to assume that they had knowledge of facts, in reference to which no evidence had been given. There was no foundation laid in the testimony for such a charge as requested, and it would have been, therefore, erroneous to have so charged. (People v. Rynders, 12 Wend., 432.)

We see no errors in the rulings at the trial, presented by the bill of exceptions, and are of opinion that the conviction should be affirmed.

All the judges concurring,

Judgment affirmed.


source: Caselaw Access Project

author: Wright, J. Allen, J.

license: Public Domain

text:
    Hayes v. The People.
    To support an indictment for bigamy, it is a sufficient marriage in fact that the parties agree to be husband and wife, and cohabit and recognize each other as such. It is immaterial whether a person who pretended to solemnize the contract was or was not a clergyman or magistrate, or that either party was deceived by his false representation of that character.
    It is no answer for the accused that, having a wife living and so incapable □ of a valid marriage, he did not intend or consent to a marriage in fact, but obtained the consent of the woman by fraudulently imposing upon her the form of marriage by a pretended clergyman. A married mant it seems, imagining himself to effect mere seduction, may blunder into bigamy.
    Proof of the manner of intercourse subsequent to the contract is admissible, as a corroboration of the prosecutrix’s testimony as to the actual marriage.
    The plaintiff in error was tried and convicted, in the Hew York Court of General Sessions, of bigamy; and, on error to the Supreme Court, the judgment was affirmed. On the trial it was proved that, on the 13th February, 1845, the prisoner was married to one Sarah E. Blair, who was still living. A witness, Jane White, was then called to prove a second marriage on the 13th September, 1860. She testified, substantially, that, in May, 1860, while she was a servant at the Pierrepont Hotel, in Brooklyn, the defendant first became acquainted with her. She first saw him at the door between 9 and 10 o’clock in the evening, when he spoke and asked permission to call on her. She assented, and he called the next Monday. On Wednesday he took her out riding, and they did not return until half-past 12 o’clock at night. On the 10th July she left the Pierrepont Hotel, and went as a servant to the Abbott House, Middletown Point.. She worked there two months, and received a number of letters from the defendant. On the 11th August he came where she worked and took board, and while there they became engaged to be married in September. She says: “I told him I did not think I was worthy of him; that he was better in the world than I was; that I had nothing but what I made per month. I told him I had met with a misfortune; he asked me what it ■was; I told him” I had had a child, and was confined in Bellevue Hospital; he said that it would make no difference; that he would give me his word of honor that it would never be cast up against me as long as I was his wife, when life lasted; I then gave consent to be his wife; I was to come to Hew York in September; my month was up on the 11th September; I came on the 12 th, and he met me at the steamboat and asked me if I was willing now to be his wife, and I told him, yes.” The -witness further stated that he took her to Thompson street, near Grand, where they were to live. On the night of the 12th she slept at her mother’s, in Brooklyn, and in the afternoon of the next day came over to Hew York and met the defendant at the room in Thompson street. They were married in that apartment about 7 o’clock in the evening of the 13th September. Hayes was gone about ten minutes, and came back with a man whom he represented to be a minister. He was dressed as a minister, and had on a white necktie. The witness did not ask his name. It was the Protestant Episcopal marriage ceremony. He read the Episcopal form of marriage from a book. He asked the witness if she would take the defendant for her husband, and she said, yes; and he asked the defendant if he would have the witness for his wife, and he said, yes; and he made them man'and wife. There was no witness present but the defendant, herself, and the person who officiated as clergyman. This person gave her a certificate of marriage, which the defendant took. The defendant told her that he wanted the marriage kept secret, as his mother had died in March and left him some property, which he would lose if his being married was made known; and for this reason she did not request any witness, or her sister, to be present at the ceremony. After this, they cohabited and lived together as man and wife.' The defendant took her around, and introduced her to her father and brother-in-law as his wife, also to a Mr. Pope and a Mr. Brown, at Bay Ridge. The last she saw of the certificate of marriage was in his trunk, by a likeness of his wife and dead child, whom he represented to be his sister and his sister’s child. This was in July, 1861, just before they went to Bay Ridgé to live. She never knew that the defendant had another wife until about the time she made complaint and he was arrested.
    It was shown, also, by her father, that in July, 1861, the defendant came to his house, in Brooklyn, and represented himself to be her husband. He came to get his daughter Catherine to stay with his wife, as she was sick. He stated, also, to Catharine White, the sister, when they were living together as man and wife, that he and Jane had been married on the 13th September, 1860. Catherine White also testified that her sister showed her the marriage certificate, which she got out of his trunk, when they lived in Dominick street, and that the defendant told her he was married in Thompson street.
    It is probable, from the evidence, that the house in Thompson street, where the defendant took her, and where the marriage ceremony was performed, was a house of bad repute; but of this, the witness Jane White testified that she knew nothing, when she went there. They were married on Wednesday, and stayed at the house in Thompson street until the following Saturday.
    The court charged the jury, amongst other things, that marriage, in this State, is a civil contract, and did not require the intervention of minister or magistrate to make it legal; that any present agreement, between parties competent to contract, to take each other for husband and wife, is a valid marriage; that if the jury believed upon the evidence that the defendant and Jane White, on the day testified to by her, in the presence of the man represented to be a minister, agreed together to be man and wife, and afterwards lived together as such, such an agreement was, in the eye of the law, a sufficient marriage to sustain an indictment for bigamy. The fact that defendant had before that time married Sarah E. Blair; that she was then living being admitted, it was of no consequence whether the man represented to be a minister was such or not.
    To this charge the defendant’s' counsel excepted; and thereupon requested the court to charge:
    That Hayes-was not competent to contract marriage with any person, on the 13th September, 1860; and a mere agreement on his part, on that day, to "take a woman for his wife, she consenting to take him for her husband, does not constitute a marriage; and a prosecution for bigamy cannot be sustained therefor.
    But the court refused so to charge, otherwise than above stated; and to the ruling and refusal the prisoner’s counsel excepted.
    The Supreme Court having affirmed the judgment of the sessions, the defendant appealed to this court.

      James T. Brady, for the plaintiff in error.

      S. B. Garvin, for the defendant in error.
   Wright, J.

To convict of bigamy, a marriage in fact must be proved; and reputation and cohabitation alone are not sufficient. The fact of a marriage may be proved by a witness .present at the celebration; and this is the ordinary way of proving it. In this State, marriage is a civil contract, and may exist without any formal solemnization by minister or magistrate.

The marriage of the prisoner to Sarah E. Blair, in February, 1845, and that she was living at the time of the trial, was proved. To establish the fact of a second marriage, in September, 1860, to Jane White, she was called and examined - as the principal witness for the prosecution. She testified, in substance, that the prisoner made her acquaintance in May, 1860, and that in August following,, and* while she was at work as a servant in a hotel at Middletown Point, they entered into an engagement to be married in September. She was to come to New York for that purpose, at the expiration of her month’s service. On the 12th September the prisoner met her at the steamboat landing in the city, and conducted her to a .house in Thompson street, where he had taken rooms. That night she staid at ner father’s house in Brooklyn, and in the afternoon of the next day came over to the city and' met the prisoner at the house in Thompson street. They were together until about 7 o’clock in the evening, when the prisoner went out and returned in a few minutes with a person represented to be a minister. He was dressed like one, and had on a white necktie. She did not ask his name. The marriage ceremony was then performed by this person. He used the form of marriage of the Protestant Episcopal Church. He inquired of the witness if she would take the prisoner for her husband, and she replied in the affirmative; and the prisoner was asked if he would have her for his wife, and, upon his replying affirmatively, the minister declared them man and wife. The person officiating gave her a certificate, using a partly printed form, and filling in the blanks by writing The certificate was taken by the prisoner and putin his trunk, and was afterwards seen by a sister of the witness, when the parties were living together as man and wife. This marriage ceremony was followed by cohabitation, which continued for about a year. It was shown, by other witnesses, that the prisoner called her his wife, wrote letters to her as such, and admitted that he had been married to her in September, 1860.

If this evidence was to be credited, a marriage in fact, as contradistinguished from one inferable from circumstances,-was proved. It is true that the authority, or official character, of the person performing the marriage ceremony was not affirmatively shown; and there was some proof in the case to excite at least a suspicion that the prisoner had procured the man who officiated to falsely represent himself as a clergyman. If, however, to constitute a valid marriage, it must be solemnized by a minister or magistrate, the evidence was sufficient, prima facie, to prove a marriage in fact. A person appearing in the character of a clergyman performed the ceremony, using the marriage service of the Protestant Episcopal Church. The marriage was followed by cohabitation, and the prisoner distinctly admitted to others that he was married at the time. If the person officiating was not a clergyman, it was for the prisoner to show that fact, after a prima facie case was made out against him. (State v. Rood, 12 Vt., 296; Rex v. The Inhabitants of Frampton, 10 East., 282.) But the Recorder was right in his charge to the jury. In this State there may be a valid marriage, though not formally solemnized by a clergyman, or consent declared before a magistrate. If parties, competent to contract, in the presence of witnesses, agree together to be husband and wife, and afterwards cohabit and recognize each other as such, it is a sufficient marriage to sustain an indictment for bigamy, in the event of one of the parties having before that time married another, who is still living. It was not error, therefore, for the judge to instruct the jury that, if the prisoner and Jane White agreed, in the presence of the man represented to be a minister, to be man and wife, and after-wards lived together as such, that was, in the eye of the law, a sufficient marriage to sustain an indictment for bigamy—the fact that the prisoner had, before that time, married Sarah E. Blair, and she was then living, being admitted. And it was óf no consequence whether the man represented to be a minister was such, or not. It is only claimed that the latter branch of the charge is erroneous; but marriage in this State being a civil contract, and not requiring the intervention of minister or magistrate to make it legal, this part of the charge was manifestly correct.

The judgment of the Supreme Court, and Court of General Sessions, should be affirmed.

Allen, J.

There was no error in permitting the prosecution to inquire of the prosecutrix as to the place and manner of her living immediately after her alleged marriage to the prisoner. It was, although not a part of the res gestas, nevertheless competent, so far as it tended to show cohabitation between the prisoner and herself, and that they lived together as married people. Such intercourse and mode of life was a legitimate corroboration of the statement of the witness as to the actual marriage, and one to the benefit of which the prosecution as well as the witness was entitled. Confessions and cohabitation would be competent evidence alone of a marriage in- most civil actions. It is competent as evidence in all, but not sufficient in prosecutions for bigamy, actions for criminal conversation and other cases, in which a marriage in fact must be proved. But in this as in every other case, express evidence of a marriage in fact may be strengthened and supported by that which tends to prove the same fact, or from which in other actions and proceedings the existence of the fact might be presumed. The court properly allowed proof from the prosecutrix, of the manner in which the parties lived as regarded each other, for the few weeks immediately succeeding the imputed marriage. The evidence was clearly competent as tending to prove a marriage in fact, resulting from a contract per verba de futuro, followed by cohabitation, which would have been allowable. (Reeve’s Dom. Rel., 3d ed., p. 307, note 1, and cases cited.)

The only other question is, as to the sufficiency of the second marriage to sustain the indictment. There was no satisfactory evidence that the marriage .was solemnized by a minister of the gospel or by any magistrate authorized by law to celebrate the rite. The statutes of this state only require the solemnization of marriages before a minister, priest, or magistrate, and in the presence of witnesses, for the purpose of registration : for all other purposes, they are valid without such celebration and attestation. (3 R. S., 5th ed., p. 228, §§ 7, 8.) The statute expressly declares that marriage, so far as its validity is concerned, shall continue in this State a civil contract, to which the consent of parties capable in law of contracting shall be essential. (Id., p. 227, § 1.) Mo particular mode of declaring or substantiating this consent is prescribed or required by law. The rules of the civil and common law, which were identical in this respect, prevail in this State. The essence of the contract, as of all contracts, is the consent of the parties; and its validity does not depend upon any form of celebration or upon the fact of cohabitation. All that the law or religion requires is that the consent be given in a deliberate manner, so as to show, beyond all question, the intent of the parties. The maxim of the civil law was, 11 Consensus non concvhitus facit matrimonium and this is the rule of the common law, and the canon law adopts the same view. Swinburne, in his Book of Espousals (§ 4), quoted in Shelford on Marriage and Divorce (p. 8), says: “ That is a present and perfect consent, the which alone maketh matrimony, without either public solemnization or carnal copulation, for neither is the one nor the other the essence of matrimony, but consent only." A contract per verba de presentí, though not attended by consummation, constitutes a valid marriage, so as to avoid a second marriage followed by consummation. (Dalrymple v. Dalrymple, 2 Hagg. Consist. Rep., 66.) The doctrine that the contract of marriage rests upon the same footing as any other contract, so far as its valid inception is concerned, is the doctrine of both the common and civil law. The consent of parties, without any peculiar forms or ceremonies, is all that is required to its valid celebration. (Reeve’s Dom. Rel., 3d ed., p. 196 and note; Starr v. Peck, 1 Hill, 270; Fenton v. Read, 4 Johns., 52; Clayton v. Wardwell, 4 Comst., 230; Milford v. Worcester, 7 Mass., 55.)

It is said, however, that, in order to constitute a valid marriage by contract in presen ti, the parties must be capable of contracting. This is, doubtless, true; and, in order to a valid contract of any kind, the parties must be capable of contracting, that is, they must be of proper age and understanding, and must act voluntarily. But, whether a marriage is celebrated in facie ecclesice, or is contracted by the present consent of the parties, it is the consent alone that creates the marital relation; and,- if either party is incapable of giving consent, there is no marriage.' The statute of bigamy is consistent with the common law, and recognizes any form of marriage, either for the first or second marriage, which would be good at common law; and the inquiry is, whether the marriage alleged was valid, that is, as to the first marriage, whether it was valid as a marriage in fact, and as to the second, whether it would have been valid but for the first, which rendered the accused incapable of contracting. (3 Grreenl. Ev., § 205.) The second marriage is a nullity; but it fixes the guilt of the accused, and subjects him to punishment for bigamy, instead of seduction, or any other offence known to the laws. The bigamist, although he is not capable of contracting the second marriage, may, nevertheless, “ marry another person,” so as to incur the penalty denounced against* bigamy. (2 R. S., p. 687, § 8.) And he may do'this in any form, or by any words, which, but for the legal bar, would constitute a good marriage. In Rex v. Pierson (5 C. & P., 414), it was held, that, although the second marriage was to a woman who assumed a name not her own, which would have rendered a first marriage void, the party was, nevertheless, guilty of the crime of bigamy; that the parties could not be allowed to evade the punishment' for an offence by contracting a concededly invalid marriage. And to the same effect, see Rex v. Allison (R. & R. C. C. R., 109). It was a question for the jury whether there was a present agreement between the parties to take each other for husband and wife; and as the presence of a clergyman was not essential to the validity of such contract, «it is not material whether one or the other party, or both, were deceived or mistaken as to the character of the witness, or the character or efficacy of the substantiation of the contract. Most certainly, the prisoner should not be permitted to evade punishment by showing that he deceived his victim, not only as to his capacity to contract, but also as to the character of the. individual called in to attest the contract; that he induced the female to believe that their union had the sanction of the Church as well as the binding force of an enduring civil contract. There was no error in the' charge, that it was of no consequence whether the man represented to be a minister was such, or not. It is true, there is no valid exception to the charge. The exception is general, and the entire charge is conceded to be right, except this isolated clause. If it was supposed this was erroneous, the attention of the judge should have been called to it by a pointed exception. The refusal to charge, as requested, that there could be no marriage by a mere agreement in presentí, so as to authorize a prosecution for bigamy, was, within the well-established rules of law, proper.

The judgment must be affirmed.

All the judges concurring,

Judgment affirmed.


author: Selden, J.

text:
    Dawson v. The People.
    An indictment charging, in the same count, an assault to have been committed “ with intent to do bodily harm,” and also “ with intent to kill,” being offences against distinct statutes, saved from the objection of duplicity by its not charging the assault “to do bodily harm” to have been “ without justifiable or excusable cause.”
    This qualification, being in the enacting clause of the statute, must, it seems be negatived to make a good indictment under it; and the charge of an intent to do bodily harm is surplusage, which does not vitiate a count fully charging an offence under another statute.
    After judgment, an allegation in the caption of an indictment that it was found by “ a grand jury of good and lawful men ” is to be deemed good, though not stating the names nor the number of the jurors. The objection must be taken by motion to quash, or by demurrer.

      The statute requiring the filing of an indictment is directory. The omission to file does not, it seems, avoid the indictment. If otherwise, an averment that it was filed with the clerk of the county is equivalent to an averment that it was filed in 'the Court of General Sessions.
    Peter Dawson, the plaintiff in error, was indicted and convicted in the Court of Sessions Of the county of Kings, and sentenced to nine years and six months imprisonment in the State Prison at Sing Sing, upon a charge set forth in the indictment as follows:
    “ State of New York, county of Kings, ss: Be it remembered, that, at a Court of Sessions, holden at the City Hall in the city of Brooklyn, in the county of Kings, on the day of November, in the year one thousand eight hundred and fifty-seven,—Present, Hon. S. D. Morris, County Judge of said county, and Martin Schoonmaker and John A. Emmons, Esqs., Justiees of the Sessions in and for the said county, sitting as such Court of Sessions,—a grand jury, of-good and lawful men, in and for said county of Kings, were then and there duly impanneled, and then .and there duly sworn and charged by said court, to inquire into all offences, as required by the statute in such case made and provided; whereupon it was afterwards presented by said jurors, at said term of said court, in the manner and form as follows, to wit:
    ■ “ Kings county, ss: The jurors of the people of the State of New York, in and for the body of the county of Kings, upon their oath present, that Peter Dawson, now or late of the city of Brooklyn, in the county of Kings aforesaid, on the thirtieth day of September, in the year of our Lord one thousand eight hundred and fifty-seven, at the said city and in the county of Kings, aforesaid, in and upon the body of William J. Potts, in the peace of God and the said people then and there being, with force and arms, did feloniously make an assault, and with and by a certain knife, which the said Peter Dawson in his right hand then and there held (the said knife being then and there a deadly weapon), with intent to do bodily harm to him the said William J. Potts, did then and there willfully, feloniously and maliciously, wound, stab, thrust, and cut, and beat, the said William J. Potts (with the intent then and thereby, willfully, feloniously and of malice aforethought), him the said William J. Potts to kill and murder, contrary to the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity.” ■
    It appeared, from the record, that the indictment was signed by the district attorney, and indorsed, “ A true bill,” by the foreman of the grand-jury; and “ was thereupon duly filed with the clerk of said county.”
    In December, 1857, Dawson was arraigned before the same Court of Sessions upon the indictment, denied his guilt, demanded a trial, and was tried, convicted and sentenced, as above stated.
    The Supreme Court, on writ of error, affirmed the judgment of the Court of Sessions; and thereupon Dawson brought the record, by writ of error, to this court.
    It did not appear that any objection was taken in the Court of Sessions to the finding or filing of the indictment, or to its substance; no bill of exceptions was made, and no motion in arrest of judgment. The defects relied upon in this court, were only those alleged to appear on the face of the indictment.

      S. H. Stuart, for the plaintiff in error.

      John Winslow, District Attorney, for The People.
   Selden, J.

It is insisted, on the part of the plaintiff in error, that the indictment is fatally defective for duplicity and repugnancy, because it charges in one count two independent felonies: one, that the prisoner committed the assault with “intent to do bodily harm,” and the other, that he committed it “ with intent to kill,” each of those crimes being in violation of a distinct statute.

The statutes referred to, are the following:

“Every person who shall be convicted of shooting at an-. other, or attempting to discharge any kind of fire-arms, or any. air gun, at another, or of any assault and battery upon another, by means of any deadly wéapon, or by such other means or force as was likely to produce death; with the intent to kill, maim, ravish or rob such other person, or in the attempt to commit any burglary, larceny or other felony, or in resisting the execution of any legal process; shall be punished by imprisonment in the state prison for a term not more than ten years.” (3 R. S., 5th ed., p. 944, § 38.)

“Any person who, with intent to do bodily harm, and without justifiable or excusable cause, shall hereafter commit any assault upon the person of' another with any knife, dirk, dagger, or other sharp, dangerous weapon; or who, without" such justifiable or excusable cause, siiall shoot off or discharge at another, with intent to injure such other person, any air gun, pistol or other fire-arms, although without intent to kill such other person or to commit any other felony, shall, upon conviction be punished by imprisonment in a state prison for a term not more than five years, or by imprisonment in the county prison for a term not exceeding one year.” (3 R. S., 5th ed., p. 970, § 24.)

If "the indictment in this case, consisting of a single count, actually charged the defendant with the two offences described in the two sections of the statute above quoted, the objection of duplicity would probably be fatal to it, either in arrest of judgment, or on writ of error. (The People v. Wright, 9 Wend., 196; Reed v. The People, 1 Park., 481; State v. Howe, 1 Richardson, 260.) ' In Tennessee, it has been held, that an objection for duplicity must be taken by motion or demurrer, and is not available after verdict. (State v. Brown, 8 Humph., 89.) The indictment, however, sets forth but one.offence, and that is, an assault with “a deadly weapon,” and “ with intent to kill.” As an indictment under the statute describing this offence, it contains all which is required to make the offence complete. Under the other statute, it would be defective because it is not alleged that the acts were done “ without justifiable or excusable cause.” These qualifying words being found in the enacting clause of the- statute, an indictment would not be good which failed to show that the defendant was not within their protection. (Rex v. Jarvis, 1 East., 647; Rex v. Earnshaw, 15 id., 456; State v. Morse, 6 Conn., 9; Spiers v. Parker, 1 T. R., 141; The People v. Allen, 5 Denio, 74.) If it was clear that two offences were intended to be set out in the single count, it might be-fatal, although one of them should be set out defectively. (The People v. Wright; Reed v. The People, supra.) But it is obvious that only one offence was designed to be charged in this indictment; and although it contains a single expression not appropriate to the offence charged, and which would have been proper in the description of a kindred offence, it could not have misled the defendant as to the charge he was called upon to answer, and did not render the count defective. Surplusage is as innoxious in criminal, as in civil pleadings. (1 Comst., 379.)

It is objected that the indictment is defective because it does not give the names or number of the grand jurors by whom it was found. It is stated that “ a grand jury of good and lawful men in and for said county of Kings was then and there duly impanneled, sworn and charged by said court to inquire into all offences, as required by the statute in such case made and provided,” and that by such jurors the indictment was presented. The statute provides that “ there shall not be more than twenty-three nor less than sixteen persons sworn on any grand jury ” (3 R. S., 5th ed., p. 1015, § 26), and that “ no indictment can be found without the concurrence of at least twelve grand jurors.” (Id., p. 1017, § 36.) After verdict and judgment, we must regard the allegation in the indictment sufficient as to the number of jurors, as less than sixteen or more than twenty-three would not constitute a legal grand jury. I think we are not at liberty to infer that it was a common-law grand jury, which might comprise only twelve persons, but that it was such a number as would constitute a grand jury under the existing law of this state.

This precise. point was decided in Young v. The State of Ohio (6 Ohio, 185; S. C., 6 Ham., 435.) In that State fifteen persons were required to constitute a grand jury, and it could consist of neither more nor less. The record stated, that “ the grand jury impanneled and sworn, in and for the body of the county aforesaid, presented the following indictment against John Young.” It was objected, on writ of error, that “it did not appear that fifteen grand jurors, or any number, found or returned the bill.” The court say: “ The term, grand jury, has a fixed, certain, legal meaning. It is fifteen such men as the law requires, impanneled and sworn as the law prescribes, to inquire in and for the body of the county where they are impanneled. * * * When the record says that ‘ the grand jury’ presented the bill, it is a legal grand jury, which consists óf fifteen. There is, then, nothing erroneous in the record here.”

Most of the writers on criminal law state that the indictment (or rather the caption, which is not a part of the indictment,) should contain the names of the grand jurors by whom the presentment is made, and the usual, but not constant, practice has been to insert them. (Hale’s P. C., 167; Hawkins’ P. C., book 2, ch. 25, § 126; 1 Saund., 249, note 1; 1 Chit. Cr. L., 333.) Mr. Chitty says: “The names of the jurors are, in cases of treason, inserted, and although there are some precedents which do not specify them, it seems to be settled that the schedule returned to the writ of certiorari with the indictment will be bad without them. But it is quite clear that there is no occasion; to set forth the names upon the record in the King’s Bench, or to annex them to the indictment; but that in the caption, as it appears in the court, they may be wholly omitted, this being the established practice of the Crown office.” (Rex v. Davis, 1 C. & P., 470.) In Bacon’s Abridgement (Indictment 1), it is said, “ some indictments have been quashed for an omission of the names of the jurors; and others for the want of the words, good and lawful men,” &c. (specifying other like defects); “yet, of late years, exceptions of this kind have not been much favored, especially if the indictment were in a superior court, and that which is omitted be, in common understanding, implied in what is expressed.” The necessity of requiring the names of the grand jurors .is somewhat reduced by the statute, which limits the grounds of challenge, by persons charged with crime, to the prosecutor or complainant making the charge, and the witnesses to sustain it. (3 R. S., 5th ed., p. 1016, §§ 27, 28; 1 Chit. Cr. L., 309.) If the objection that the grand jurors are not named in the caption of the indictment is available at all to the defendant, I think it must be presented on motion to quash the indictment or by demurrer (the caption may be demurred to, 1 Ch. Cr. L., 335; Bac. Abr., Indictment K.),«and that it is too late to present it upon writ of error after judgment. It was so decided by the House of Lords in England, after taking the opinions of the judges, in the case of The King v. Aylett. The case is reported in a note to The King v. Marsh, (6 Ad. & Ellis, 236; 33 Eng. Com. L., 1st ed., 71), as follows: “The defendant having brought a writ of error, assigned for error the several objections he had made to the indictment on the motion in arrest of judgment; but in the printed treasons,’ and after-wards in the argument, these were abandoned, and a new objection insisted upon, viz..: that the copy of the caption on the record"dzd not contain the names of the persons on whose oaths the indictment was found. This day. Mr. Erskine and Mr. Wood were heard for the defendant, and Mr. Beárcroft and Mr. Cooper for the prosecutor, when the House, after consulting the judges, ordered the judgment to be affirmed.” (The King v. Darley, 4 East, 174; The King v. Atkinson, id., 176, note b, Day’s ed.; State v. Hickman, 3 Halst., 299.)

In some of the States it does not appear to be the practice to insert the names of the grand jurors. (State v. Brady, 14 Verm., 353; Commonwealth v. James, 1 Pick., 375; Same v. Fisher, 7 Gray, 429; Young v. State of Ohio, supra.)

The only remaining objection is, that the indictment was not “filed” as the statute requires. The words of the statute are: “Indictments found by a grand jury shall be presented by their foreman, in their presence, to the court, and shall be there filed, and remain as public records,” &c. (3 R. S., 5th ed., p. 1018, § 88.)

There being no words in the statute indicating an intention on the part of the legislature that the indictment should be void if not so filed, this provision must be regarded as merely directory. (3 Mass., 232; 6 Wend., 486; 6 Hill, 42; id., 646; 3 Denio, 526; 9 Paige, 17; 2 Comst., 134; 1 Burr., 447; Smith’s Com. on Stat., §§ 670-680.) I entertain no doubt, therefore, that the indictment would have been valid if it had remained in the hands of the court, not filed. The record, however, shows that the indictment, after its presentment to the court, “ was thereupon duly filed with the clerk óf said county.” The county clerk is, ex officio, clerk of the Court of Sessions (3 R. S., 5th ed., p. 304, § 13). The statute was, therefore, strictly complied with by filing the indictment with him. c1

The judgment of the Supreme Court should be affirmed.

All the judges concurring,

Judgment affirmed.


author: Sutherland, J.

text:
    Shepherd v. The People.
    The act (ch. 410 oí 1860) was ex post facto and void, so far as it attempted ' to change the punishment for arson in the first degree committed previous to its passage.
    Whether the act is to be construed as retrospective in this respect, doubted, per Sutherland, J., the court not passing on the question*
    That is an ex post facto law which increases the punishment denounced against the act when committed, or which punishes an oifence in a‘ manner in which it was not punishable when committed, irrespective of its comparative severity, unless the new punishment is one the same in kind as the old, but less in degree.
    A prisoner against whom a wrong judgment was pronounced upon a regu- ■ lar trial and conviction, cannot be subjected to another trial.
    The plea of autrefois convict is supported by proof of a lawful trial and verdict or confession on a sufficient indictment, though no judgment bo given upon it.

      Accordingly, when the judgment is reversed for an illegal sentence upon a conviction in which there was no error, a new trial cannot be ordered, but the prisoner must be discharged, and this though upon a motion in arrest of judgment he asked for a new trial.
    James Shepherd was indicted in the New York General Sessions, in October, 1857, for arson in the first degree, charged to have been committed on the 9th day of June, 1857, and was tried before the Recorder of the city of New York, in February, 1861. The jury found him guilty of the offence. The counsel for the prisoner moved in arrest of judgment, and for a new trial, substantially on the following grounds:

      First: That when the offence charged was committed, the punishment prescribed by the Revised Statutes for arson in the first degree was death; but that the act of April 14th, 1860, entitled, “ An act in relation to capital punishment, and to provide for the more certain punishment of the crime of murder,” had changed the punishment for arson in the first degree, prescribed by the Revised Statutes, to imprisonment in one of the State Prisons, at hard labor, for life; that the prisoner could not be sentenced under the act-of 1860, because so far as it applied or was intended to apply to crimes of arson in the first degree committed before the passage of the act, it was ex post facto, and unconstitutional.

      Second: That the prisoner could not be sentenced under the act of 1860, because the provisions of that act, prescribing imprisonment for life as the punishment for arson in the first degree, were prospective merely, and, were not intended to apply to a crime of arson in the first degree, committed before the passage of the act.

      Third: That there was no punishment whatever prescribed by the act of 1860 for arson in the first degree, committed in June, 1857.
    The motions in arrest of judgment, and for a new trial, were denied; and the prisoner thereupon was sentenced to be imprisoned at Sing Sing, and be kept at hard labor, for the term of his natural life.

      The case having been carried to the Supreme Court, by writ of error, the judgment was affirmed, at general term in the first district; and was brought to this court by writ of error to the Supreme Court, which writ of error brought up 'the record alone, without any bill of exceptions.

      John. W. Ashmead, for the plaintiff in error.

      Nelson J. Waterbury, for The People.

       In the casé of Eartmg v. The People, decided March term, 1863, it was held • that the act was retrospective, applying to ail convictions subsequent to its passage, though the oifence was previous to its enactment.

   Sutherland, J.

When the crime of which the prisoner was convicted was committed it was punishable with death. The prisoner was sentenced to imprisonment in the State Prison at Sing Sifig for life. The prisoner must have been sentenced on the theory that the provisions of the act of April 14, 1860, substituting imprisonment for life, for death, as the punishment for arson in the first degree, were intended to apply not only to an offence committed after that act took effect, but also to the offence of which the prisoner had been convicted, committed in 1857, before the passage of the act.

The first section of the act of 1860 declares, that no crime ' thereafter committed, except treason and murder in the first degree, should be punished with death in this State. The second section makes two degrees of the crime of murder, defining them. The sixth section déclares that every person convicted of murder in the second degree shall be sentenced to imprisonment in one of the State Prisons for life. By the second section, it .is declared that “ Section one, of title one, of chapter one, of part fourth of the Revised Statutes, shall be amended, so as to read as follows: § 1. Every person who shall hereafter be convicted, first, of treason against the people of this State; of second, of murder; or third, of arson in the first degree, as those crimes are respectively declared in this title, shall be punished as herein provided.’ ” The first section of title one, of chapter one, of part fourth of the Revised Statutes, thus.amended, originally read thus:

Sec. 1. Every person who shall hereafter be convicted,

1. Of treason against the people of this State; or,

2. Of murder; or,

3. Of arson in the first degree; as those crimes are respectively declared in this title, shall suffer death for the same."

By the ninth section of the act of 1860, it is declared that the provisions of the act “ for the punishment of murder in the first degree, shall apply to the crime of treason; and the punishment of murder in the second degree, as herein provided, shall apply to all crimes now punishable with death, except as herein provided.” The tenth section is, “ All' persons now under sentence of death in this State, or convicted of murder and awaiting sentence, shall be punished as if convicted of murder in the first degree under this act.” The eleventh and last section of the act repeals section 25, and eleven other sections, of the Revised Statutes before referred to; section 25 being the section which prescribed the manner of executing capital punishment by hanging. The other repealed sections contained certain regulations in respect to the execution of capital punishment in certain cases, or under certain circumstances.

It is perfectly plain, that the legislature, by the act of 1860, intended to punish crimes of arson in the first degree, thereafter committed, with imprisonment in a State Prison for life; for section 6 of the act provides that punishment for murder in the second degree; and section 9 declares, that the punishment for murder in the second degree, “ as herein provided, shall apply to all crimes now punishable with death, except,” &c.; and arson in the first degree was then, by the Revised Statutes, punishable with death. The prisoner was sentenced under the act of 1860, and upon a construction of that act, that the provisions of the act changing the punishment for arson in the first degree from death to imprisonment for life, were intended to apply to a crime of arson in the first degree, committed before the passage of the act, and when the provision of the Revised Statutes punishing the crime with death was in full force. I doubt whether such is the true and reasonable construction of the act. What particularly distinguishes the question in this case from that in the case of Hartung v. The People (22 N. Y., 95), is that, by the tenth section of the act, it is expressly declared that all persons then under sentence of death, or convicted of murder and awaiting sentence, should be punished as if convicted of murder in the first degree under the act. This section applied to Mrs. Hartung’s case. She was under sentence of death, for murder, when the act of 1860 was passed. The question was, whether she could be punished under the act; and it was held that she could not; that so' far as the act attempted to subject to the new punishment of death and previous imprisonment at hard labor, persons who had been convicted of murder, it was ex post facto, and void. The act does not expressly declare that the provisions of the act changing the punishment of arson in the first degree should apply to offences committed before the passage of the act. In the absence of express words showing an intention that' these provisions should be retroactive, it is not to be presumed that they were intended to be so. (2 Dwarr. on Statutes, 540; Tillman v. Lansing, 4 John., 45; Dask v. Van Kleef 7 John., 477; Johnson v. Burrell, 2 Hill, 238; Lawrence v. Miller, 2 Comst., 245.) Certainly it is not to be presumed, that the legislature intended to pass an unconstitutional, ex post facto law; and if the provisions of the act changing the punishment of arson in the first degree should be construed to apply to offences committed before the act, it will hereafter be shown that it must also be held that, so far, It was ex post facto and unconstitutional.

The first section of the act is exclusively and expressly prospective. The words are, “ Ho crime hereafter .committed,” &c. I find nothing in the subsequent provisions of the act (except, perhaps, the eleventh section, repealing certain sections of the Revised Statutes, regulating the execution of capital punishment), going to show that the provisions of the act, changing the punishment of arson- in the first degree, were intended to be retrospective. The fact that the tenth section expressly declares, that persons who were then under sentence of death, or convicted of murder and awaiting* sentence, should be punished as if convicted of murder in the first degree under the act, certainly goes to show that the provisions of the act preceding the tenth section were intended to-be prospective merely. The tenth section would probably not have been inserted in the act, if the preceding provisions of the act had been intended to be retroactive.

The passage of the act of April 17,1861, reviving and undertaking to reapply the punishment for murder and for arson in the first degree, in force at the time the act of April 14, 1860 was passed, to offences committed previously to the day that act took effect, certainly does not show that the act of 1860 was not intended to have a retrospective operation; but the passage of the act of April 17, 1861, must certainly be deemed a conclusive legislative construction of the act of 1860, to the effect that that act presently abolished or repealed the provisions of the Revised Statutes prescribing the punishment of murder and of arson in the first degree, so that the prisoner (who was sentenced prior to the passage of the act of April 17, 1861) could not have been sentenced to suffer death under the provisions of the Revised Statutes in force when his crime was committed, whatever may be deemed to be the force or effect of the act of 1861. Mor does it follow that the provisions of the act of 1860, changing the punishment of arson in the first degree to imprisonment for life, should be construed as intended to have a retrospective operation, if that act should be deemed to have repealed the provisions of the Revised Statutes punishing that crime.. If the legislature, by the act of 1860, carelessly or unintentionally repealed the law punishing the prisoner’s crime, that is no reason why reasonable and well-settled principles of construction should be disregarded for the purpose of punishing it under that act.

If the act of 1860 presently repealed the -provisions of the Revised Statutes prescribing the punishment of death for arson in the first degree, and the provisions of the act of 1860, changing that punishment to imprisonment for life, were intended to apply only to offences thereafter committed, the consequence was, that the prisoner’s crime-was left without any law punishing it. (Dwarr., 676, 677; State v. Daley, 29 Conn., 272, and cases cited by Judge Denio in the case of Mrs. Martung.)

As the prisoner was sentenced before the passage of the act of April 17, 1861; considering that the first section of the act of 1860 was expressly prospective ; that there are no words of express repeal in the act, except the eleventh section; that the words of the seventh section are, section one of title one, &c., of the Eevised Statutes, shall he amended,” &c.; I'think the question was, whether the prisoner could not have been sentenced under the provisions of the Eevised Statutes in force when his crime was committed", upon the construction of the act of 1860, that it did not repeal the provisions of the Eevised Statutes as to offences committed before its passage; that the amendment by the seventh section and the other provisions of the act changing the punishment of arson in the first degree were intended to apply only to offences thereafter committed, leaving offences committed before the passage of the act to be punished under the Eevised Statutes. If the legislature had expressly declared that the amendment by the seventh section was to apply only to offences thereafter committed, such, I think, would have been the construction and effect of the act. I think the question was, from the whole act, whether that was not its reasonable construction, .in the absence of any such express declaration. Certainly my doubt would have been, independent of the act of 1861, whether it could properly be said that the act of 1860 does repeal the provisions of the Eevised Statutes, punishing treason, murder and arson in the first degree, except so far as the act by the tenth section attempts to apply the new punishment, under the act, of imprisonment for at least one year previous to the execution of the death penalty, to persons then under conviction for murder, and except so far as the eleventh section expressly repeals the sections of the Eevised Statutes regulating the manner of the execution of the death penalty, &c.

In State v. Daley (29 Conn.), before cited, it would appear from the report of the case that section 6 of the act preventing the original punishment was not only altered, but expressly repealed by the new act. So in most, if not all, of the cases cited by Judge Dehio in Mrs. Hartung’s case, except that of Commonwealth v. Duane (1 Binn., 601), the original act was expressly or plainly impliedly repealed by the subsequent act presenting the new punishment or penalty; and the case of Commonwealth v. Duane, I think, was wrongly decided.

No doubt the act of April 17, 1861, was passed upon the . careless assumption that this court, in Mrs. Hartung’s case, had decided that the act of 1860 had repealed the provisions of the Revised Statutes punishing treason, murder and arson, in the first degree, and that offences committed previous to the passage of the- act of 1860 could not be punished under it; whereas I think that the only point that can be said to have been decided in that case was, that, so far as that act attempted by the tenth section to subject to .the new punishment of death and previous imprisonment at hard labor, persons already under conviction for murder, it was ex post facto and void. The act of 1861 having been passed Upon an erroneous assumption, has increased the doubts and complications resulting from the extraordinary act of 1860, and one might be almost excused for thinking that both acts were mainly designed to punish judges who should unfortunately be called upon to construe and apply them.

But the question presented by the record in this case is, not whether the prisoner might have been sentenced under the provisions of the Revised Statutes to suffer death, or whether, if the judgment should be reversed, and the court can and should award a new trial, and he should be tried and convicted again, he could be sentenced to suffer death under the Revised. Statutes dr the act of 1861, or both; but the question presented by the record is, whether the sentence to imprisonment for life, which was pronounced upon him under the act of 1860, was • legal. I think it was not, because, for reasons before stated, I . think the provisions of the act, changing the punishment for arson -in the first degree to imprisonment for life, must be deemed to have been intended to apply only to offences committed after 'the act should take effect.

If, however, the provisions of the act, changing the punishment of arson in the first degree, should be held to have been intended to* apply to offences committed before the passage of the act, in my opinion so far the act should be held to be ex ■post facto and void.

I think this is shown conclusively by Judge Denio in his opinion in the Hartung case; but I will add that a law which increased the punishment with which an act was punishable when committed would be plainly ex post facto; although it might be said, perhaps, that the new law did not change thS manner of the punishment; as, for instance, if, when the act was committed, it was punishable with thirty days’ imprisonment and the new law declared that it should be punished with forty days’ imprisonment; for as to the number of days’ imprisonment by which the punishment Was increased, the case would be precisely the same as if the act when committed had not been punishable at all, and under the new law the criminal could not be sentenced to any less number of days than were prescribed by it.

So also if an act, when committed, was punishable by thirty days’ imprisonment, a subsequent law changing the punishment of the act to thirty stripes or to thirty dollars fine would be plainly ex post facto, for when the act was committed it was not punishable in that manner, and in view of the constitutional prohibition of ex post facto laws, the case would be precisely the same as if the act had not been punishable at all ■when committed. If you do not hold a law punishing an act in a different manner than it was punishable when committed to be ex post facto, irrespective of the question whether the new punishment is or is not more merciful or lenient, you will leave it to the discretion of the legislature and of judges to. say whether the new punishment is or is not more merciful or lenient than the old; and such a construction of the constitutional prohibition would impair its value and certainty of protection.

A law, the effect of which is simply to reduce or diminish the punishment with which an act was punisháble when committed, cannot be an ex post facto law, because it inflicts no new or additional' punishment.

In Fletcher v. Peck (6 Cranch), Chief Justice Marshall defined an ex post facto law to be one which makes an act punishable “in a manner in which it was not punishable when committed.” Add to this, or which increases the punishment with which the act was punishable when committed, and I think the definition will be as complete, and certain and safe, as can well be made.

It is plain, then, that the moral or philosophical disquisition as to whether imprisonment for life it hard labor is better or more desirable or less severe than death, has really nothing to do with the question whether the act of 1860, assuming that it was intended to have a retrospective operation, is, so far, ex post facto or not. Imprisonment for life at hard labor is an entirely different kind or manner of punishment, from punishment by death. The act of 1860 entirely changed the punishment for. arson in the first degree. It changed it from death to imprisonment for life. The two punishments have no elements in common. If it should be held that the act of 1860 merely diminished the punishment with which the prisoner’s crime was punishable when committed, because imprisonment for life at hard labor is generally considered a more lenient punishment than death, or one which the criminal would prefer to suffer, then it could be held that a law changing the punishment of an act from imprisonment for a certain number of days or months to a fine, or from a certain number of stripes to imprisonment for a certain number of days, was not ex post facto, because the court might think the new punishment more lenient than the old, of that the criminal would prefer to suffer the new punishment. Indeed, as I have before said, if you depart from the principle that a law is ex post facto because it punishes the offence in a different manner, or by a different kind of punishment, than it was punishable with when committed, the question whether the law is ex post facto is left to judicial discretion; for a decision of the question must depend upon the opinion of judges, as to whether the new punishment is more severe than the old, or whether the new punishment would or would not generally be preferred by criminals to the old. The construction of constitutional limitations should be left as little as possible to either legislative or judicial discretion.

My conclusion is, then, that the provisions of the act of 1860, changing the punishment of arson in the first degree, were intended to apply only to offences thereafter committed; but if it should be held otherwise, then that those provisions are ex post facto and void, so far as they were intended to apply to a crime of arson in tie first degree, committed before the passage of the act. In either view of the act, and upon either holding, the judgment of the court below must be reversed.

But an important question remains to be considered, which is, ought this court, upon reversing the judgment, to order a new trial or the discharge of the prisoner ? In looking at this question, I think we must assume that the prisoner, if a new trial is ordered, might be sentenced to suffer death under the Revised Statutes, or the act of April 17,1861, or both, if he could be lawfully tried again, and was tried and convicted; for we must assume that no opinion that this court might now express upon the question whether, if the prisoner should be again tried and convicted, he could be sentenced to suffer death, would prevent such sentence, that question not being raised by the record before us.

Section 24 of the article of the Revised Statutes relating to ■ writs of error on judgments and certioraries in criminal cases (2 R. S., p. 741, § 24), provides: “ If the Supreme Court (upon a writ of error) shall affirm such judgment, it shall direct the sentence pronounced to be executed, &c. If the Supreme Court shall reverse the judgment rendered, it shall either direct a new trial, or that the defendant be absolutely discharged.”

There was no bill of exceptions in this case; but if there had been, it is very clear that, if the Supreme Court had reversed the judgment upon the ground that a wrong sentence had been pronounced, that court could not have directed the General Sessions to proceed'and pronounce the proper sentence. By the statute, the Supreme Court, on reversing the judgment, could only grant a new trial or absolutely discharge the prisoner.

Upon reversing the judgment, this court must either direct a new trial or the discharge of the prisoner; it cannot direct any other judgment to be given on the conviction. This would have been so, had there been a bill of exceptions; ct fortiori, where there is none.

Previous to the law giving a defendant in a criminal case a right to a bill of exceptions (2 R. S., p. 736, § 21), a new trial could not be granted on the merits, by any court, in any case of felony. (The People v. The Judges of the Dutchess Oyer and Terminer, 2 Barb., 286; The People v. Comstock, 8 Wend., 549, and authorities there cited.)

But by the common law a new trial could be granted in a case of felony, when there had been a mistrial relating to the regularity of the organization of the court, or of the impanneling of the jury, or, perhaps, conduct of the jury. Thus, in Arundel's case (6 Coke, 14), where the defendant had been tried by a jury returned from a certain city, instead of a certain parish, and had been convicted, and moved in arrest of judgment on that ground, it was adjudged that the jury ought to have come from the parish, and not the city, and that the trial was insufficient, and a new venire was awarded to try the issue again. So, in the case of The People v. McKay (18 John., 212), where the defendant was indicted, tried and convicted of murder, and moved in arrest of judgment on the ground that the venire which had been issued was a nullity, and the court adj udged that it was a nullity, a new trial was ordered. _ In his . opinion in this case, Chief Justice Spencer refers to a case as having occurred within his knowledge, where the defendant was tried and convicted of murder, and a new trial was granted on the ground of the misconduct of the jury in separating, after agreeing, and before rendering their verdict. So in the Cancemi case (18 N. Y., 128), since the Eevised Statutes, where the defendant, with his own consent, was tried and convicted of murder by a jury consisting of but eleven jurors, the judgment was reversed and a new trial ordered. There was a bill of exceptions in this case; but the judgment was reversed and a new trial ordered on the record alone.

In all these cases, the new trial was awarded on the ground that there had been no lawful trial; on the ground of irregularity in the impanneling or conduct of or organization of the jury; and on the record alone. In the principal case, the indictment was sufficient; the court at which the defendant was tried was a court of competent jurisdiction; the jury were regularly impanneled, and rendered a lawful verdict; and the judgment, if reversed, must be reversed upon the record alone, and upon the ground alone that a wrong judgment was given upon a lawful and regular verdict; and the question is whether, in such a case, the court should order a new trial. In view of the provision of the Revised Statutes above referred to, expressly authorizing the court, upon reversing the judgment, to either direct a new trial or that the prisoner be discharged, I think the court should not direct a new trial, if the prisoner could plead his former regular trial and conviction in bar of another trial. The circumstance, thafthe counsel of the prisoner, on moving in arrest of judgment, also asked for a new trial, I regard of no consequence. The constitutional provision is, “No person shall be subject to be twice put in jeopardy for the. same offence.” (Const. of State, art. 1, § 6.) This provision may be considered as addressed to cburts; and, if the prisoner is within its protection, he ought to be discharged, although his counsel did formally ask for a new trial.

The question is, then, whether the prisoner, if the j udgmenr* is reversed upon the ground alone that a wrong judgment was given upon a lawful and regular trial and conviction, can constitutionally be tried again. It is clear to me that he cannot. In the case of The People v. Taylor (3 Denio, 97), Judge ■ Bronson said, “If a wrong judgment be given against a defendant, which is reversed on error (there being no bill of exceptions), the court of review can neither give a new judgment against him nor send the case back to the court below for a proper judgment” — citing The King v. Bowne (7 Adol. & El., 58); Shepherd v. Commonwealth (2 Metc., 449); Christian v. Commonwealth (5 id., 530); and The King v. Ellis (5 Barn. & Cres., 395). These cases fully establish the rule as stated by Judge Bronson. In the case of O'Leary v. The People (4 Park. Crim., 187), where-the prisoner was regularly tried, and the jury rendered a verdict which would have authorized a judgment as upon a conviction for a simple assault and battery, but did not authorize the judgment which was rendered as upon a conviction for a felony, the Supreme Court, upon' reversing the judgment, on writ of error, discharged the prisoner, referring to Judge Bronson’s opinion in People v. Taylor.

These cases are probably sufficient to show, that a new trial should not be directed in this case; but in view of the provision of the statute, which was not referred to either in People v. Taylor, or the case last cited, and in view of the great importance of the question in this case not only, but in other capital cases, in which the question has arisen, since the act of 1860, I shall examine the question further.

In 1 Inst., 391, a, it is said: “ The difference between a man attainted and convicted is, that a man is said convict before he hath judgment, as if a man be a convict by confession, verdict, or recreancie. And when he hath his judgment upon the verdict, confession, &c., then he is said to be attaint." It is further said: “ By a conviction of a felon his goods and chattels áre forfeited, but by attainder, that is, by judgment given, his lands and tenements are forfeited and his blood corrupted, and not before.” So in Jacob’s Law Dictionary (Attainted).it is said: “ Attainder of a criminal is larger than conviction; a man is convicted when he is found guilty or confesses the crime before judgment had, but not attainted till judgment is passed upon him.” This shows the technical, common-law definition of the word convict or convicted ; a felon was convicted by •the verdict of a jury ; he was attainted by the judgment ren- . dered on the verdict.

One would think, from this common-law definition of the word convict or convicted, that, by the common law, the plea of autrefois convict implied merely a regular trial and verdict of guilty, or a confession upon a sufficient indictment. I think the books show that this was so. In Darly's case (4 Coke, 40), one Wetheral brought an appeal against Darly of Minden. The defendant pleaded not guilty, and was found guilty of homicide and had his clergy; and afterwards was indicted for murder, and he pleaded his former conviction in the appeal at the suit of the party; and it was adjudged a bar, and thereupon he was discharged, “ because a man’s life should not be twice put in jeopardy for one and the same offence.”

In Vaux’s case (4 Coke, 45), it is said: “If a man is convicted either by verdict or .confession upon an insufficient indictment, and no judgment thereupon given, he may be again indicted and arraigned because his life was never in jeopardy,” &c. This implies, if the indictment is sufficient, that the conviction is a bar, though no judgment is given upon it. The same case shows that a lawful conviction by verdict on an insufficient indictment, followed by a judgment, is a bar to a second’trial until the judgment.is reversed. Hawkins (P. C., book 2, ch. 36, § 10) says: “ The plea of autrefois convict seems chiefly to depend on the reason, that the party ought not to be brought twice into danger for the same crime. Upon which ground, it seems agreed, that a conviction on an appeal or indictment of burglary or other felony may be pleaded to an indictment or appeal for the same felony.” Again he says (§ 15 of same ch.): “ But it seems clearly settled that, whenever the record on which a man is convicted of manslaughter and admitted to his clergy, on an indictment or appeal of murder, is erroneous, either in respect of insufficiency in the indictment or for a mistrial, &c., so that his life was not in danger at the trial, he cannot plead such conviction and clergy thereon in bar of a second indictment or appeal.” Blackstone (4 Bl. Com., 336,) citing Hawkins, says: “ The plea of autrefois convict, or a former conviction for the same identical crime, though no judgment was ever given or perhaps ever will be, (being suspended by the benefit of clergy or otherwise,) is a-good plea in bar.”

Chitty says: “In order to plead this plea (autrefois convict) with effect, the crime must be the same for which the defendant was before convicted, and the conviction must have been lawful on a sufficient indictment. And if he has neither received sentence nor prayed the benefit of clergy, this plea is said not to be pleadable, if the former indictment were invalid.” (1 Chitty Crim. L., 462.)

In the case of the People v. Barrett (2 Caines, 304), where the prisoner had pleaded to the indictment, the jury been sworn and evidence offered, and the public prosecutor, without the prisoner’s consent, had withdrawn a juror because he was" unprepared with his evidence, it was held that the prisoner could not afterwards be tried on the same indictment. Held, that he might be tried on another indictment for the same offence (1 Johns, 66), where it appeared that the first indictment was defective.

In the case of the People v. Casborus (13 John., 351), it was held, that the former indictment and trial was no bar where the judgment had been arrested, but this was upon the ground that it was presumed that the judgment was arrested on the ground that the indictment was defective.

In State v. Benham (7 Conn., 414), where the judgment was suspended it was held that the verdict constituted the bar.

In State v. Morrell (2 Yerg., 24), that the verdict was a bar, when the judgment was improperly arrested upon a good indictment.

In Dyer v. Commonwealth (23 Pick., 404), there was a special verdict which did not authorize the judgment entered on it, and the judgment was reversed and the prisoner discharged.

In the People v. Goodwin (18 John., 202), Chief Justice Spencer said that the rule that no person shall be subject for the.same offence to be twice put in jeopardy of life or limb, meant that “ no man shall be twice tried for the same offence.”

The prisoner, James Shepherd, having been regularly and lawfully tried and convicted on a good indictment, and there being no bill of exceptions, the authorities leave no room for doubt that he is entitled to the protection of this common-law and constitutional rule.

In Mrs. Hartung’s case there was a bill of exceptions, and there was a new trial ordered. It must be conceded that the" judgment was not reversed on the bill of exceptions, but it is not probable that the question, whether the prisoner should be - discharged or a new trial ordered, was much considered in that case.

My conclusion is, if the judgment against the prisoner, James Shepherd, is reversed, he should be discharged.

Denio, Ch. J., Wright, Selden and Allen, Js., concurred, not now passing on.the construction of the act of 1860, but on the ground that, if retrospective, it is unconstitutional; Davies, Smith and Gould, Js., dissented from that portion of the opinion which denies the power of the court to order a new trial, and requires the discharge of the prisoner..

Judgment reversed and nrisoner discharged.