author: Selden, J.

text:
    Hartung v. The People.
    A Court of Oyer and Terminer gave judgment for the prisoner on demurrers to special pleas establishing a good defence. The plea of not guilty remained on the record undetermined. The Supreme Court reversed the judgment on the demurrers, and ordered a new trial. Held:

    1. That the judgment of the Oyer and Terminer was final, and appealable to the Supreme Court.
    2. That the judgment of the Supreme Court, though directing a new trial, was final so far as that court is concerned, and therefore appealable to this court.
    The record having been remitted to the Court of Oyer and Terminer, this court has power to reach it for the purpose of reviewing the judgment of the Supreme Court; but whether the writ of error should be addressed to the inferior court, the Supreme Court, or both, quaere.

    This was a motion to dismiss the writ of error, issued in June last, the return to which had been filed with the clerk; on the ground that this court has no jurisdiction to review the judgments of the court below, in the present state of the proceedings.

      It appeared from the return that the plaintiff in error (Mary Hartung), was indicted in June, 1858,-in the city and county, of Albany, for the murder (as charged in the indictment) of Emil Hartung, in the previous month of April. At the session of the Oyer and Terminer in Albany, in September last, the' prisoner, by leave of the court, without withdrawing the plea of not guilty, which had been previously interposed, filed three special pleas, in bar of the indictment.
    1st. That having pleaded not guilty to the indictment, she was tried at the Oyer and Terminer in said county, in February, 1859, and found guilty of the offence charged, “ which trial and conviction were in all respects valid and legal, and have not been in any respect reversed or made void, for any insufficiency or legal error therein committed.”
    2d. The same conviction, and a sentence that she be exe cuted on the 27th of April, 1859; and that by the constitutions of the United States and of the State of Hew York, no ■ person shall be subject to be twice put in jeopardy for the same offence.
    3d. The same conviction and sentence, and the act of the legislature, passed April 14, 1860, repealing, as-is alleged, all the provisions of the law for the punishment of the offence charged in the indictment.
    To the first and. second pleas, it was replied, that the conviction and sentence were reversed in this court, and a new trial ordered to be had in the Oyer and Terminer. The replication to the third plea, set forth the act of April 17, 1861, by which all the provisions of law in regard to the punishment of murder, existing and in force, at the time of the passage of the act of April 14, 1860, were revived and declared to be in force in respect to offences committed prior to the 4th day of May, 1860.
    On demurrer to the replications, they were held insufficient by the court of Oyer and Terminer—the pleas were sustained and judgment was pronounced that the defendant be discharged from custody.'

      On a writ of error, removing thé record to the Supreme Court, the judgment of the Oyer and Terminer was reversed, the pleas were declared insufficient; leave was given to the prisoner to withdraw the demurrers, and rejoin to the replications, or to withdraw the special pleas, and proceed to trial on the plea of not guilty, and the record and judgment of the Supreme Court were remitted to the Oyer and "Terminer, to be proceeded upon in that court in conformity to the judgment of the Supreme Court.
    In this stage of the proceedings, the writ of error which was now sought to be dismissed, was issued from this court, addressed to both the Supreme Court and the Court of Oyer and Terminer.
    The return was made by the county clerk, who was shown by an affidavit read on the motion, to be, ex officio, the clerk both of the Supreme Court and of the Court of Oyer and Terminer; the record appearing to. be in his custody, as clerk of the latter court.

      William J. Hadley, for the plaintiff in error.

      Ira Shafer, for The People.
   Selden, J.

The position of the moving counsel is, that the judgment of the Supreme Court, returned in answer to the writ of error, is not a final determination of that court, for the reason that a new trial is ordered in the court of Oyer and Terminer.

At common law no writ of error lay until after final judgment in any case, either civil or criminal, and we find nothing in the statutes applicable- to this case changing in any respect that rule. If, therefore, the judgment brought up by the writ of error, was not a final judgment, the writ must be dismissed. (The People v. Stearns, 23 Wend., 634; The People v. Merrill, 14 N. Y., 74.)

Ho case directly involving this question has been before the court in any criminal proceeding, but as the rule at common law was as inflexible in civil as in 'criminal cases, that no writ of error lay until after final judgment, and as the statutes, notwithstanding the substitution of appeals for writs of error, has wrought no change in this respect, so far as this court is concerned (Code, §§ 4, 5, 11,325), we must regard the jurisdiction in both classes of cases, as resting upon substantially the same footing, with reference to the character of the judgments which the court is authorized to review; the appeal, under the Code, taking the place of the writ of error, in civil cases, at common law.

In Van Santvoord v. St. John (6 Hill, 157), the Supreme Court had reversed a judgment obtained in the Hew York Common Pleas, and awarded a venire de novo in the Common Pleas. On error to the Court for the Correction of Errors, that court denied a 'motion to dismiss the writ, holding that if the judgment of the Court of Common Pleas was right, and the Supreme Court had erroneously reversed it, awarding a venire de novo, the judgment of the latter court should be reversed, and that of the Common. Pleas restored, without waiting for a new trial; and that the writ of error was, therefore, well brought. The court proceeded to hear the case, and ultimately reversed the judgment of the Supreme Court, and affirmed that of the Common Pleas. The earlier case of Reab v. McAllister (4 Wend., 483; 8 id., 109), was in all respects like that of Van Santvoord v. St. John, but the question of jurisdiction was not raised in the Court for the Correction of Errors. Such also was the case of Hutton v. American Insurance Company (7 Hill, 321; 24 Wend., 330).

The correctness of the decision in Van Santvoord v. St. John, was recognized by the Supreme Court in Jackson v. Walker (6 Hill, 261), where a plaintiff in error in the Supreme Court, who had obtained the reversal of a judgment of the Superior Court of the city of Hew York, and an award of a venire de novo in that court, was ordered to perfect his judgment of reversal, to the end that the defendant in error might remove the record by a writ of error to the Court for the Correction of Errors.

Those decisions were followed in this court in the case of Messerve v. Sutton (3 Comst., 546), where a surrogate had dismissed a proceeding instituted before him to bring executors to account, and the' Supreme Court, on appeal reversed his decision, and directed him to proceed with the account. It was held that the order of the Supreme Court was appealable to this court.

In the preceding case, Duane v. The Northern Railroad Co. (3 Comst., 545), a motion to dismiss an appeal from ah order made at a general term of the Supreme Court, reversing a judgment rendered at the circuit, before a single justice of that court, and awarding a new trial, was granted. The grounds of the distinction between the two cases are given in the case of Messerve v. Sutton, where it is said in regard to the latter ease, “ The proceeding not having arisen in the Supreme Court, the order of that court reversing the surrogate’s decree, was a final determination within the meaning of the Code (§§ 11-245), and therefore the appeal was well brought.”

The case of Wagner v. Reilly (4 How. Pr. R., 195), is in exact accordance with that of Messerve v. Sutton.

In Tompkins v. Soulice (7 How. Pr. R., 194), in this court the same principle was recognized, though the appeal was dismissed on the ground that the surrogate’s order appealed from to the Supreme Court, was not a final order. Chief Justice Ruggles in delivering the opinion in that case, mentions another case in this court where there had been a final judgment in the Common Pleas of Hew York, which was reversed on writ of error by -the Supreme Court, and a new trial ordered; and an appeal from the judgment of the Supreme Court to this court was held to be well brought. In that opinion the chief justice states the grounds on which the appeals were sustained in those cases to be, “ that the judgments of the Supreme Court were final as respected that court."

In case of Talbot v. Talbot (23 N. Y. 17)—the latest case in which this question has been presented here—an appeal from the judgment of the Supreme Court reversing, for error in law, a surrogate’s decree admitting a will to probate, and remitting the proceedings back to the surrogate, was held to be well brought to this court upon the authority of Messerve v. Sutton; and substantially the same reason was given for sustaining it, as that given by Chief Justice RuGGLES, viz.: “ That the order of reversal in such a case is the final determination of the proceeding in the Supreme Court. Nothing remains to be done in that court, and if a new appeal is brought, from a second decree of the surrogate, it is a proceeding de novo, and not a continuance of the first appeal.”

The rule being thus established by a long series of decisions in civil cases, that a writ of error lies immediately to this court from a judgment of the Supreme Court, reversing a final judgment or decree of an inferior court, notwithstanding the judgment sought to be reviewed directs a new trial or other like proceeding in the inferior court; and seeing no reason for any distinction in this respect between civil and criminal cases, we think the writ of error properly brought.

It was objected that the judgment could not be regarded ás final, so long as the issue formed by the plea of not guilty, remains undisposed of. If the judgment had been against the prisoner on her special pleas, the judgment would not have been final, because only three out of four defences, which she had been allowed to interpose would have been overcome, and no final judgment could have been pronounced against her until all her alleged defences were shown to be unavailing. But the establishment of any one of such defences as a sufficient answer to the wholei indictment, rendered the others, whether good or bad, wholly immaterial, and entitled her to final judgment upon-the whole record.

In the People v. Murrill (14 N. Y., 74), one count of the indictment remained unanswered, and the Supreme Court was directed to dismiss its writ of error to the Oyer and .Terminer because the judgment of the latter court was not final; but it should be observed that this court instead of dismissing its own writ of error, retained it and reversed the judgment of the Supreme Court. That could only have been done on the ground above stated, that the judgment of the Supreme Court was final as to that court, although one issue remained undetermined in the court below.

The writ of error was addressed to both the Supreme Court and the court of Oyer and Terminer, and the return was made by the county clerk, as ex officio clerk of both courts, in behalf of both, though it appears that he held the. record as clerk of the latter court.

It is the settled practice of the Supreme Court of the United States, which has power to review on writ of error, only the judgments of the courts of last resort in the states, where the record has been remitted by such court to an inferior court, to address its writ to such inferior court. (Gelston v. Hoyt, 3 Wheat., 246.) In this case, Story, J., delivering the opinion of the court, says: “ It may be directed to either court in which the judgment and record on which it is to act, may be found. The judgment to be examined, must be that of the highest court of the state having cognizance of the case, but the record of that judgment may be brought from any court in which it may be legally deposited, and in which it may be found by the writ.”

We think this decision applicable in principle, to the present case; and that, although this court can only review judgments of the Supreme Court in cases like the present, it must of necessity have the power to bring from an inferior court by its writ of error, the record of any judgment of the Supreme Court which it has. a right to review, and which in the course of legal proceedings has been remitted to such inferior court. Whether this is to be accomplished by addressing the writ to the inferior court, having possession of the record, or to the Supreme Court, leaving it to that court to obtain the record from the court below, or to both, as has been done in this case, it is not now necessary to decide, the record, duly authenticated, being returned in compliance with the writ, and all objections to the form of the writ, being expressly waived. Chancellor Walworth suggested, in a similar case (The People v. Stearns, 23 Wend., 236), that either of the two former courses might be pursued. Whether the first is admissible under the statutes in relation to writs of error in criminal cases, may admit of some question (2 R. S., p. 740, § 17), but it is strongly recommended by its simplicity, and if not allowable where the record has been remitted to an inferior court, it is not easy to determine how the directions of section 20 requiring the clerk of the court with which the writ is filed to return a transcript of the record, can be complied with.

The motion to dismiss the writ of error must be denied.

Motion denied.

CASE ARGUED AND DETERMINED nr the COURT OF APPEALS OF THE STATE OF NEW YORK, January Term, 1S63.


source: Caselaw Access Project

author: Denio, Ch. J.

license: Public Domain

text:
    The People, ex rel. The Bank of Commerce, v. The Commissioners of Taxes.
    The Federal Constitution does not invest Congress with the.-power to exempt from State taxation securities of the Federal Government issued • upon loans effected before the enactment exempting moneys thus invested from taxation.'
    In respect to loans already effected, the exemption, operating simply for the benefit of the original vendor or his assigns, cannot aid the Federal Government in borrowing money, and cannot be upheld as auxiliary to any power granted by the Constitution.
    Appeal from, the Supreme Court. Certiorari to the commissioners of taxes and assessments for the city and county of New York, to review their determination that the Bank of Comrñerce was liable to taxation upon the amount of its capital stock, though the entire amount of such stock was invested in public securities of the United States. The material facts, and the judgment of the Supreme Court, are stated in the following opinion. The relators appealed to this court.

      Benjamin D. Silliman and Daniel Lord, for the appellants.

      Henry H. Anderson, with whom was Greene C. Bronson, for the respondents.
   Denio, Ch. J.

The certiorari which was awarded in this case by the Supreme Court was sued out by the relators for the purpose of determining the constitutional validity of the act of the Congress of the'United States, passed on the 25th day of February, 1862, which in terms exempts the stock of the United States from taxation under the authority of the several States. The language of the provision is as follows:

“ § 2. All stocks, bonds and other securities of the United States, held by individuals, corporations or associations within the United States, shall be exempt from taxation by or under State authority.” (Acts, 1861-'2, p. 346.)

It appears from the return to the writ, and from statements furnished by the relators, that the Bank of Commerce possessed, as the investment of its capital, at the time fixed by law for ascertaining the property of the citizens and corporations liable to taxation for the year 1862, the amount of $7,341,265 of the stock of the public debt of the United States, and that $5,946,265 of such stock had been issued by the proper officers of the Government prior to the passage of the above-mentioned act of Congress, and that the residue, being $1,395,000, was issued after the said act had become a law. The defendants had assessed the whole of this stock as a part of the taxable property of the relators. Their counsel contended before the Supreme Court, as they have done upon the argument of this appeal, that the whole of that stock was exempt from taxation by force of the Constitution of the United States; but if the judgment of the court should be adverse to them on that proposition, then they insisted that it was certainly exempt by the terms and effect of the aforesaid act of Congress. The Supreme Court, following the judgment of this court pronounced in the case of The People, on the relation of the Bank of The Commonwealth, v. The Same Defendants (23 N. Y., 192), rejected the claim to exemption, as based upon the constitutional provision .alone; but they held that the act of Congress was a constitutional exercise of the authority of the Federal legislature in respect to the stocks issued subsequently to the enactment of that statute, but that as to stocks already issued, and which were in the hands of individuals when it was passed, it had no constitutional effect or validity; and that such last mentioned stocks were assessable, and that the holders and owners thereof were taxable thereon notwithstanding the said act. The relators have appealed from so mu.ch of that judgment as was adverse to their claim; but it does not affirm that the commissioners of taxes and assessments have appealed from any part of the judgment.

The appeal does not, therefore, present for determination any question respecting the stocks issued after the act of Congress had taken effect; and as to that portion of the judgment of the Supreme Court, we adhere to the course adopted upon the former occasion referred to, of refraining from any expression of opinion upon any point which it is not our- duty or our right to decide.

Upon the question actually before us, we concur in the conclusion arrived at in the Supreme Court, and mainly for the reasons stated in the opinion of the majority of the judges of that court.

Conceding, for the' purpose of the argument, and for that purpose only, that it is within the competency of Congress to provide, as a part of a scheme for effecting loans upon the national credit, that the money which should be so lent by individuals or corporations should, by that act of lending, be thereafter exempted from the burden of State taxation, we are of the opinion that the power to enact such a provision can only result from the express power conferred upon the General Government to borrow money upon the credit of the United States. That authority, equally with the other express powers conferred upon-Congress, carries with it the right to make all other laws which shall be necessary and proper for carrying such authority into execution. If the exemption of the scrip, or evidence of indebtedness, or the money represented by it, from State taxation, be a necessary or proper measure for obtaining funds for public objects by way of loan, within the true sense of the Constitution, it is because it will facilitate and render more effective and available the exercise of the express power to borrow money on the credit of the United. States. But the loans to which it is now sought to annex the exemption were effected, and the money borrowed was parted with by the lenders, and was received by the Federal Government, wholly without the influence of any such provision. The power to borrow that money had been, fully executed, and the power itself, as to those loans, had been entirely exhausted. The lenders had not required the advantage which the act holds out. to capitalists as an inducement to part with their -funds, but had been content to invest them in the credit of the Government. The conferring of an' exemption from State taxation upon such lenders, after the loans had been-consummated, seems to us to be an advantage conferred gratuitously upon them, not indeed at. the expense of the General Government, but at the expense and in derogation of the authority of the Governments of the States.

. It ,is scarcely necessary to say, because the proposition is irresistibly plain, that the arrangements of State taxation, and the distribution of its burdens upon the property of the citizens, are matters wholly of State concern, with which the General Government'has ordinarily no authority to intermeddle, unless it shall be necessary and proper to do so in order to carry into execution some substantial power conferred by the Constitution upon.the National Government. We conceive that there cannot be any necessity or propriety, or even any convenience or advantage to the public,' in exempting the holders of the evidence of indebtedness in respect to Federal loans negotiated and consummated when no such exemption existéd. We are, therefore, of opinion that the judgment of the Supreme Court, in the respect in which- it is appealed from, is right, and ought to be affirmed, and it is accordingly affirmed.

All the judges concurring,

Judgment affirmed.

Note.—Upon writ of error from the Supreme Court of the United States, this judgment was reversed. (See 2 Black, 620.)

.CASES DETERMINED 32T THE ' COTJBT OF APPEALS OS' THE STATE OF YORK, March. Term, 1863.


author: Denio, Ch. J. Emott, J. Balcom, J.

text:
    Hartung v. The People.
    The act in relation to capital punishment (ch. 410 of 1860) is retrospective, and applies to all persons thereafter convicted, though the crime was committed before the enactment of the law.
    The amendment of the act of 1860 by chapter 303 of 1861, reviving the original .law for the punishment of murder, does not affect a prisoner who in the meantime had obtained a final adjudication in this court that the law existing at the time of her conviction did riot authorize any punishment of a previous murder—the former law being repealed, and the substituted act being void as e® post facto. •

    The effect of such a j'udgment is equivalent to an acquittal of the charge on which she was tried; is a good plea in bar to a second trial; and the legislature has no power to deprive her of the benefit of that defence.
    After the reversal of the conviction and judgment in this case, at the September term in 1860 (22 N. Y., 95), the record having been remitted to the Oyer and Terminer of Albany county, the District Attorney again moved the trial of the case, when the defendant had leave of that court to plead the former conviction and judgment in bar; and she accordingly put in 'three special pleas setting forth the indictment, plea of not guilty, trial, verdict and sentence. The first plea averred that the former convictions were legal and valid and had not been reversed on any legal error therein committed. The second set out, in addition, the constitutional provision declaring that no person should be subject to be twice put in jeopardy for the same offence, and the third set out, at large, the act of 1860, respecting capital punishment (ch. 410), and averred that it repealed all the provisions of law for the punishment of murder which existed when the alleged offence was committed. The District Attorney put in replication setting out the affirmance of the conviction on error brought to the Supreme Court, and its reversal in the Court of Appeals and the award of a new trial. The replication averred that the reversal was based upon the reasons mentioned in the published opinion of the court, namely, the effect of the act of 1860; and they also set forth an act of the legislature, passed the 17th April, 1861, entitled an act in relation to' cases of murder, &c. (ch. 303), restoring, as was averred, the provisions of law respecting murder, as they existed prior to the enactment of the statute of 1860, and at the "time when the alleged offence mentioned in the indictment was committed. The prisoner demurred to the,replication, and the District Attorney joined in demurrer. The Oyer and Terminer gave judgment upon the demurrer in favor of the prisoner, and adjudged that she be discharged; but this judgment was reversed by the Supreme Court, on error brought on behalf of the People, the court, however, giving leave to the prisoner to withdraw the pleas in bar and to proceed to trial on the issue of- not guilty. The present writ of error was brought by the prisoner to review - that judgment, and the case was argued here by

      William J. Hadley, for the plaintiff in error, and by

      Ira Shafer, late District Attorney, for the People.
   Denio, Ch. J.

When the case of the plaintiff in error came before us on a former -occasion, she had been convicted of murder, upon a legal trial, and had been sentenced to be executed. This court then reversed the judgment because the legislature had subsequently enacted a statute which forbade the execution of such sentence as that which had been pronounced against her, and had required that such convict should be subjected to imprisonment at hard labor for one year, and, as we construed the legislative intention, should thereafter be executed if the Governor should issue his warrant for such execution. We considered this provision for imprisonment and death in the same case to be an ex post facto law, and held it to be void, because the Constitution of the United States had- prohibited the states from enacting such laws. It was considered to be ex post facto, because it attempted to change the punishment which the law had attached to the offence of the prisoner when it was committed, not by remitting some divisible portion of it, but by altering its kind and character. The principle of the judgment thus reversed has been since reaffirmed and applied in the case of Shepard v. The People (25 N. Y., 406).

Laying out of view for the moment the act relating to murder, passed in the year 1861, and considering this case as uninfluenced by this act, the inquiry is whether this convict can be again tried and convicted for the same murder. The legislature,, by declaring that persons under sentence of death when the act of 1860 was passed, instead of being executed according to their sentence, and according to the law as it had existed up to that time, should be put to hard labor for a considerable period, and afterwards hold their lives at the pleasure of the Executive, and be executed when, in his discretion, he should think proper so to order, did effectually repeal, as to that class of offenders, the prior law for the punishment of murder. As the punishment attempted to be substituted for that provided by the antecedent law, which had been abolished, could not be applied on account of the constitutional prohibition, it followed inevitably that the interference of the legislature had rendered it impossible that the prisoner should be punished under either law. It was not a sufficient answer to the difficulty to say that the members of the legislature did not probably intend to grant impunity to offenders in the situation of the prisoner. They did intend to abrogate as to her and as to all persons in the same situation the former punishment, and that design they effectually carried out. They intended also that such offenders should be punished in another way, but this they could not effect on account of the constitutional inhibition. The reversal of the judgment against this prisoner, proceeding, as it did, upon the absence of any law for the punishment of her offence, as .effectually exempted her from being again tried and sentenced for the murder charged in the indictment, as it shielded her from the execution of the sentence already pronounced. If a new verdict of guilty should be returned on a second trial, it would . be impossible to render a judgment of death pursuant to the Revised Statutes, because the legislature had forbidden her to be punished in that way. It would be as true after such fresh trial and verdict, that she was a pérson who had been under sentence of death when the act of 1860 was passed, as it was when we reversed the former judgment, and the same reason which compelled us to reverse that judgment would preclude the giving of a similar judgment upon the second verdict, and would require the reversal of such second judgment if one should be rendered. It would be equally impossible to pronounce the compound judgment of imprisonment’ at hard labor and a subsequent execution as mentioned in the act of 1860, because the" constitutional objection to' that law would apply to her case after a second trial and a new conviction, in the same manner as when judgment was rendered upon the first conviction. It is, therefore, apparent to my mind that in reversing the judgment which had been rendered against the prisoner, we necessarily determined that the legislature had so interfered with the arrangements for the punishment of the crime of murder that a particular class of offenders, embracing the prisoner, could not be punished at all. It was the duty of the court of Oyer and Terminer to give effect to that, judgment in its disposition of the prisoner’s case, upon the record being remitted to that court. The order which it made was in accordance with the law as it was here adjudged, unless the act of 1861 affects the case, and we think it was the only order which it could lawfully make.

There is a view of this case, which requires some further explanation. If it were true that the only part of the act of 1860 which was designed to reach the case of offences committed before that act was passed was the 10th section, which declares that persons then under sentence "of death, or awaiting sentence upon a conviction for murder, should be punished in a particular way, and if all the other provisions .of the act were prospective only, then, inasmuch as the substituted punishment could not be inflicted on account of the ex post facto character of the provision contained in that section, it might be argued that the section was void, and that it being the only provision abolishing the punishment provided by preexisting laws, the prisoner ought to have been left to suffer according to her sentence, which was pronounced under and in accordance with those laws. It is, therefore, a material inquiry, whether, by the true construction of the act, the former punishment was abolished generally and the new one substituted in respect to all offences of murder already committed. The act commences, in the first section, by declaring that no crime thereafter committed, except treason and murder in the first degree, shall be punished with death. The following sections, to the sixth, inclusive, are devoted to the new definition of murder in the first and in the second degree, and to the mode of punishing these offences, namely, by one year’s imprisonment at hard labor and then by a capital execution, if and when the Governor shall issue his warrant, as to the first, and by perpetual imprisonment at hard labor as to the second degree. If the act had stopped here, it ought, I think, to have been considered as wholly prospective, and it would have left the preexisting law to apply to offences committed prior to the passage of the ■act. But the seventh section, which immediately follows, is an alteration of the section of the Revised Statutes which denounced the penalty of death for treason, murder, and the first degree of arson. It declares that it shall be amended so as to read as follows: “Every person who shall hereafter be convicted” of treason, murder, or arson in the first degree, “ as those crimes are respectively defined in this title, shall be punished as herein provided.” The words “ herein provided” must be construed to refer to the provision for punishment contained in the act, and not to the one mentioned in the Revised Statutes; though, if the section, as thus amended, kept its place in the title of the Revised Statutes to which it belongs, according to the system of amendments made in that form, the reference would be to those Statutes. But such a reading would leave all these offences without any punishment whatever, and certainly could not have been intended. Where new provisions, or modifications of existing provisions, are enacted by declaring that a particular section shall be amended so as to read in a given manner, in the form made use of in this case, the new part is to be construed, as regards the subject upon which it is to take effect, in the same manner that an independent statute, having the same provisions, ought to be construed. (Ely v. Holton, 15 N. Y., 595.) In interpreting this section upon that principle, the new punishment mentioned in it is attached to all future convictions, without regard to the time when the offence was committed. It is possible that such a verbal construction might, if there were nothing of a contrary tendency in the act, be forced to yield to the principle that a retrospective effect is not generally to be given to ah act of the legislature when it can be avoided. But this could only be accomplished by rejecting the natural meaning of the language. Passing over the seventh and eighth sections, as not material to the present question, we come to the tenth, which, as already mentioned, declares that all persons then (that is, at the time of the taking effect of the statute) under sentence of death, or convicted of murder, and awaiting sentence, shall be punished as if convicted of murder in the first degree under the act, that is, by both imprisonment and death. This renders it perfectly certain, as it seems to me, that the change of punishment was intended to apply to offences already committed. Persons who had been convicted before the act was passed must, of course, have committed the offences of which they were convicted prior to that time. There might be a good reason for suffering offenders, who had been condemned in the course of criminal proceedings, to receive the punishment which the law had annexed to their offences, though it might, at the same time, be judged proper to change the punishment of those who had not yet been prosecuted; but there can be no conceivable motive for inverting the position, by suffering the old law to remain as to offenders who were yet to be tried, while such as had received judgment under the former law should have their sentences changed by legislative enactment. The reason for a change of punishment in regard to actual convicts would apply with greater force to offenders who had not yet been prosecuted. The intention of the legislature seems to me very plain. The amendment of section one of the fourth part of the Revised Statutes prescribed the new punishment for all future convictions; and as it was not intended that the old punishment should ever be thereafter resorted to, the case of persons who had been actually sentenced or convicted, and who were awaiting sentence, was taken up, and their punishment changed by the unusual expedient of a legislative revision, so as to conform them to the altered rule which had been established respecting future convictions, and for all other cases. The last section of the act furnishes additional evidence to the same effect. It repeals, by their numbers, twelve sections of the Revised Statutes. The repeal is absolute, direct and immediate. Those sections, it is said, “ are hereby repealed.” On looking at these repealed sections, it will be seen that they contained provisions inconsistent with the new mode of punishment, though well suited to the former method. Section 12 required the execution to take place at a time not more remote than eight weeks from the time of the sentence, which, of course, would not admit of the year’s intermediate imprisonment. Section 13 required the judge who presided at the trial immediately to send to the Governor a statement of the conviction and sentence, with his notes of the testimony. There was no other apparent motive for this repeal' except that it was reenacted in the same language-in the new statute. The repeal of the fourteenth section, which empowered the Governor to require the opinion of certain judicial officers upon the statement, proceeded upon some motive not apparent to me. The sixteenth, seventeenth, eighteenth and nineteenth sections of the Revised Statutes provided for the case of convicts alleged to have become insane after being sentenced to death. A summary inquiry to determine the fact of insanity was to be instituted, before a jury, and if the convict was thereby found to be insane, the execution was to be suspended until the sheriff should receive a warrant from the Governor or from the justices of the Supreme*Court, directing the execution. The inquiry as to the existence of insanity would be pertinent under either system of punishment; but to the arrangement which required a preliminary imprisonment of one year, and then the Governor’s determination that’ execution should take place, the provision which gave the judges authority to issue the warrant would be hostile. The sixteenth and seventeenth sections were therefore allowed to stand, and the eighteenth was amended, by the eighth section of the act of 1860, by repealing the part allowing the judges to issue the warrant. The section was changed in another particular, not material to the present question. By tile nineteenth section, the Governor was authorized, as soon as he should be convinced of the sanity of the convict, to appoint a time and place for his execution. As this might interfere with the direction for the year’s preliminary imprisonment at hard labor, the section was embraced among those • which were repealed. Three of.the repealed sections—the twentieth to the twenty-second, inclusive—make certain provisions for the case of a female sentenced to death and discovered to be pregnant. An inquiry into the facts is directed, and the execution is suspended until the impediment shall have ceased to operate, when the Governor is .authorized to fix a day for it to take place. This would all be unnecessary and inapplicable where a year’s imprisonment is required to intervene between the sentence and the capital infliction. A similar motive existed for repealing sections twenty-th^ee and twenty-four, because, under their provisions, a capital execution' might take place within one year from the time of the sentence. They required the Supreme Court to appoint a time for the execution of a capital sentence when the time fixed by the sentence itself had, for any reason, passed by, and to issue their warrant to the sheriff for that purpose. This would take from the Governor the discretion which the new mode was intended to vest in him, and might require the execution to take place within the year. The reason for the repeal of section twenty-five, which declared that the punishment of death should be by hanging, it is more difficult to understand. As it seems clear that it was designed by the authors of the statute that capital punishment should in some cases be inflicted, I am inclined to suppose that the repeal of this provision was inadvertent. It is not, how-? . ever, necessary to solve that doubt. The actual and immediate repeal of the section is certain, and the consequence is the same, whatever may have been the motives which led to it. One of the sections of the Revised Statutes stated to be repealed by the last section of the act of 1860 is section-twenty-nine. .There is no. such section in that title—the section numbers ending at section twenty-seven;"but the substance of an act of 1846 (ch. 118) is incorporated into some of the late editions of the Revised Statutes, and is there numbered twenty-nine, and it is this provision which is attempted to be repealed. (R. S., 5th ed., vol. 3, p. 938.) It provides for the case of a. prisoner under sentence of death being confined in a jail in another county from that in which he was convicted, in consequence of the proper jail being unsafe, &c.; and the direction is that the sheriff of the county in which he is actually confined shall, “ on the day appointed for the execution of the sentence,” perform that duty. It was seen that this enactment, if literally followed, would compel an execution without allowing a space for the year’s imprisonment, and hence it was repealed. I have been thus particular to state the effect of this repealing section, which took, effect immediately upon the passage of the act of which it is a part, in order to show the persistent determination of the legislature that no capital execution" under the former laws should thereafter take place, and to establish that there is no ground for saying that the change of punishment was intended to be prospective merely, or that there was an implied saving in the statute in respect to offences theretofore committed. ' The plain direction by which the new rule is applied to all future convictions; the express provision made to embrace the case of offenders already convicted and sentenced, and the present repeal and amendment of all those portions of the Revised Statutes which would conflict with the immediate operation of the new mode of punishment, demonstrate, I think, the design of the legislature to apply that mode to all future executions of sentences of death whenever the offence was committed and whenever the conviction took place.

I have not overlooked the rule of interpretation by which general language in a statute is required to be construed prospectively, and not retrospectively, unless a contrary intention plainly appears. A somewhat strained construction is allowed in such cases, when necessary to prevent injustice or public inconvenience, and in furtherance of a presumed general intention of the legislature. But the section of this statute by which offenders, who had been actually tried, convicted and sentenced when it was passed, are expressly subjected to the new punishment, forbids any such forced construction in the present case. We know, with absolute certainty, that it was designed by the authors of the law to apply the new punishment to the case of offenders who had been already convicted under the antecedent law; and we cannot, therefore, refuse to give effect to the language by which they, in terms, subject all future convicts to such new penalty, upon any suggestion that they did not intend what their language naturally imports. The effect of the provisions of this statute, therefore, is to forbid, from the time of its passage, the infliction of the penalty of death, simply and unconnected with any other punishment, in any case, and to substitute for such penalty the year’s imprisonment, and then the putting to death of the offender in some form, if the Governor shall so determine. The- substitute may have the full effect intended as to future offences, but can have no operation in respect to those already committed, for the reason which has been mentioned. But the preexisting law having been displaced by a repeal, to make room for the substituted system, it cannot be resorted to for any purpose, though such substituted system, in one aspect of it, cannot be applied.

Some portions of the opinion prepared by Mr. Justice Sutherland, in Shepherd v. The People (25 N. Y., 406), may be considered hostile to a portion of the reasons given for the judgment in Hartung v. The People, as reported in the 22d volume of New York Reports, and which I have now more fully explained; but so far as that opinion conflicted with those reasons, it was unnecessary to the determination of the case, and was not concurred in by a sufficient number of the judges to pronounce a judgment.

udgmenthe case of the plaintiff in error. If it could apply to the persons in the situation in which she was when the act of 1860 repealed the penalty to which she was subject by the antecedent law, it must be by retracting the repealing clauses and reinstating such antecedent law and directing its application to her case, and to the cases of all other persons similarly sitúated. But while the repeal remained unaffected by any subsequent law, the process against the plaintiff in error came before this court in the regular course of justice, and the question was presented whether the conviction and judgment which had been pronounced respecting her should be affirmed and executed, or should be reversed and annulled as unwarranted by the then existing law; and the judgment was that it should be reversed and annulled. No question can now be made as to the legal propriety of that determination. It is res adjudieata between the people of the state and the plaintiff in error. Now acts done and closed pursuant to a law which15, is subsequently repealed, must endure and stand and be good and effectual notwithstanding such repeal. (Dwarr. on Statutes, 534.) This was the case as to the alleged offence of the plaintiff in error! When the process against her was presented for final adjudication in this court, and it was found that there was no law authorizing the punishment of her imputed offence, a judgmént was pronounced in her favor which absolved her from being again legally questioned for that offence. It was equivalent to an acquittal upon that charge, for it was the judgment of a court of competent jurisdiction that in the then state of the law she could not be subjected to punishment. The effect of the repealing act of 1860 was to expunge the prior law from the statute book as completely as though it had never existed. If the legislature was competent to change this state of the law, by a repeal of the repealing act, and thus to blot out such first repealing act so that it could not thereafter be availed of, which it is not necessary to deny, still it could not, in my judgment, destroy the effect of a judgment pronounced in the meantimeand while the first repealing act was in force. Suppose a person had been prosecuted after the passage of the act of 1860, and before its repeal by the act of 1861, for an alleged murder committed before the passage of such first mentioned act, and had been acquitted, not for want of proof of the corpus delicti, but upon the grounds on which we proceeded when this case was before us for the first time, namely, that the act of 1860 had repealed the provisions of the Revised Statutes for the punishment of murder. Ho one, I suppose, could maintain that such a person could be again prosecuted for the same offence -after the enactment of the statute of 186Í. Such prosecution, in my judgment, would be liable to be defeated by two conclusive objections; first, that the act of 1861 as applied to such a case would be an ex post facto law and unconstitutional. By the repeal of the provisions of the Revised Statutes and the trial and acquittal óf the offender while such repealing law was in force, the act of the prisoner, though not innocent in a moral sense, would be dispunishable. A legislative act restoring the repealed law would have precisely the same effect as though the offence had not been punishable originally, but had been made so for the first time by the restoring act. Such a law would be within the spirit of this constitutional prohibition and would, in my opinion, be void. The other objection referred to would arise under the constitutional injunction that no person shall be twice put in jeopardy for the same offence. The general rule, as is well known, is that if a person has been once tried and acquitted or convicted, he may plead such prior acquittal or conviction upon a subsequent arraignment for the same offence. These would be good pleas at the common law, and the constitution only affirms the principle and renders it unalterable by any exertion of the law-making power. But it does not apply where the indictment was defective, so that no lawful judgment could be rendered upon it, or in the case of a mistrial, as where there was no venire, or where the trial jury did not'consist of the full number of twelve jurors, or where a new trial has been ordered on account of erroneous ruling upon the first trial, or in cases of the like nature, nor where-the jury was discharged from necessity without rendering a verdict. In this class of cases it may be said that the accused was never in legal jeopardy. But where neither the indictment nor the trial were subject to any legal exception, but the conviction or judgment has failed of its natural effect by the interposition of the government or of the prosecution, it would be contrary to the spirit and intention of the rule and of the constitutional provision in affirmance of it, .if the accused could be subjected to another trial for the same offence; and, moreover, as it seems to me, it would be manifestly unjust* and oppressive. If the legislature can authorize a second trial where there has been a conviction which has become ineffectual by its own interposition, it may do so where there has been an acquittal. The two cases fall within the same reason. I not considered it necessary to refer to the numerous cases where the rule and its exceptions have been the subject of judicial exposition, because the most material of them have been very carefully examined in the opinion in the before mentioned case of Shepard v. The People. That case itself is a precedent for the judgment I am about to recommend in the present instance. The offence of Shepard, which was arson in the first degree, was committed prior to 1860; and his trial upon which he was convicted, took place in the early part of 1861, and before the enactment of the act of that year. He was Sentenced to perpetual imprisonment, in intended obedience to that act. The Revised Statutes in force when the act of which he was accused was perpetrated, did not,.as we held, warrant that mode of punishment, and the act of 1860 was held to be void in its application to that case as being an ex post facto law. We were of course bound to reverse the judgment of the Oyer and Terminer which had been affirmed by the Supreme' Court, a'nd the question then arose whether it was proper to award a new trial or whether the accused should be discharged. This involved the consideration of the effect of-a trial and verdict perfectly legal and regular upon an indictment in all respects sufficient, and when the only error "'consisted in pronouncing a judgment which was not warranted by any law. It was determined that the prisoner had been once placed in jeopardy in the sense of the constitutional provision, and we added to the reversal of the judgment an order that he should be discharged. The question did not arise whether he could have been sentenced under the provisions of the Revised Statutes as no such sentence had been given. The point adjusted was the same which is now presented. In neither case was'there any defect nor error in the indictment, trial or verdict. In the case of Shepard the judgment was illegal; in that of the present plaintiff in error the judgment had become illegal by the repeal of the law by which it was once authorized; but we held in the case of Shepard that the former construction precluded the possibility of another trial, and on that ground we made the order for the discharge of the prisoner. The principle thus settled shows that the "judgment of the Oyer and Terminer in the present case was correct. '

I have intentionally omitted in what has thus far been said, to. make any reference to the order which was entered for a new trial when the' judgment against the plaintiff in error was reversed. If the effect of the judgment of reversal under the circumstances and for the reasons upon which it proceeded, was such as to render another conviction impossible, the order so entered would not deprive her of the bene-' fit of that judgment. It did not in terms direct a new trial upon the issue of not guilty of the murder of which she stood charged; and taken in connection with the reasons which were given on the judgment of reversal, it could not well have been so understood; for we held that whether guilty or not, the legislative interposition, and the constitutional prohibition against changing the punishment which existing laws had attached to an offence already committed, prevented any sentence against her. Besides, her guilt of the act charged had been established by an unexceptionable trial and verdict. If she had been punishable under the Revised Statutes notwithstanding the act of 1860, the judgment was correct as it stood, and there was no reason for reversing it. If the provision substituting a different punishment had been constitutionally valid, there was still no reason for reversing the judgment, for the governor and the sheriff could have executed the will of the legislature; and it was the design of the act that it should be executed by these officers, in the case of a conviction and sentence which remained unexecuted when the act of 1860 passed without any further resort to the courts. The judgment of reversal, even independently of the reasons given, necessarily affirmed that she could not be punished under either of these legal provisions, and as there were no other modes of punishment, it followed that she could not be punished in any way. The formal order for a new trial, if it meant a new trial for the murder upon the issue which had been once tried and determined, would have been plainly inconsistent with the judgment of reversal, as well as with the reasons upon which it proceeded. If it had been understood as a mandate to the Oyer and Terminer to proceed with the case. in accordance with the principles established by the judgment of reversal, the discharge of the prisoner might have been ordered by that court without a further trial, the facts involved being continued in the record. Enough appears in.the case as now presented to show that the award of a new trial was improvidently entered, and the whole ■ case being legitim ately before us on this writ of error, we are bound to give effect to the law as it has been pronounced, and we accordingly reverse the judgment of the Supreme Court and affirm that of the Court of Oyer and Terminer, and direct the prisoner to be discharged.

Davies, Weight, Selden and Marvin, Js., concurred.

Emott, J.

It is too late, in my opinion, to inquire whether' this court pronounced a correct judgment in directing a new trial upon the former writ pf error. The People and the prisoner acquiesced in and pursued that judgment, and the new trial which it ordered has been had. It was not'necessary that the trial should be upon a plea of not guilty, involving the merits of the indictment. The prisoner was allowed, in the Court of Oyer and Terminer, by an exercise of discretion which we cannot review, to withdraw her plea of not guilty, and plead three special pleas in bar. To these the district attorney replied specially. . The prisoner demurred to the replications, and the People joined in demurrer, and the issue of law thus made was tried in the court in which the indictment was pending. This was a new trial of the prisoner in conformity with the order of the Court of Appeals, and whether that order was correctly or inadvertently made, cannot now be considered. We are only concerned with the result of the trial which has been had under it.

. The two first pleas of the prisoner are in substance the same. The provision of the Constitution of the United States, that no person shall be twice put in jeopardy of life or limb for the same offence, is an explicit and solemn recognition of the maxim of the common law that no man shall be twice tried for the 'same offence; and the test by which the courts determine whether a person has been once in jeopardy, or once already tried, is whether a plea of autrefois acquit or autrefois convict can be sustained, according to the rules of the common law. (People v. Goodwin, 18 John., 187; Story on the Constitution, § 1787.)

Great learning and ability were displayed on both sides in the argument at the bar, whether,- to sustain a plea of autrefois convict, there must be a judgment as well as a verdict. There is, it must be allowed, at least a seeming inconsistency in the language of the authorities upon the question. Mr. Justice Blackstone (4 Comm., 336), says that the plea of 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 for other causes), is a good plea in bar to an indictment. On the other hand, Sir Matthew Hale (Pl. Cor., 248), cites Faux's case (4 Co. R., 45), as holding that autrefois convict by verdict is no plea, unless judgment be given upon the conviction. In the opinion of Chief Justice Spencer, in the case of The People v. Goodwin (supra), he says, speaking of a plea of a former acquittal, that, to render it a bar, there must have been a legal acquittal by judgment upon a trial for the same offence and the verdict of a petit jury. Chitty, in his Criminal Law (vol. 1, p. 462), speaks somewhat less distinctly of a sentence or judgment being requisite. He says, •“ 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.” There would seem to be a practical injustice, and an inconsistency with the meaning and spirit of the common law rule, as adopted by the constitutional provision in this country, in demanding that a prisoner should have received sentence in all cases before he should be allowed to plead that he had been once convicted, or had been once in jeopardy for the same offence. It might be in the power of. the court before whom the first trial was had arbitrarily to suspend sentence. I am not aware of any power or right on the part of a prisoner to ask for judgment against him in-such a case. Yet he might thus be deprived of the protection of a previous valid conviction noon a second trial for the same offence, and possibly exposed after the termination of his sentence upon the second trial, to be arrested, sentenced and confined upon the first conviction.

The plea of autrefois convict must certainly be proved in part by a record. Lord TTat/ei says the plea consists of two kinds of matters: 1st, matter of record, namely, the former indictment and acquittal or conviction, and before what justices and in what manner; 2d, matter of fact, viz., that the prisoner is the same person, and the fact is the same.” So Mr. Chitty says the plea must set forth the former record and aver the identity of the person and the offence. (1 Chit. Crim. Law, 463.) The rule, however, is mainly a rule of proof, and questions upon the character and sufficiency of the first conviction have arisen upon the record introduced. In Rex v. Parry (7 C. & P., 836), the original indictment and minutes of the clerk of assize were received to prove an acquittal at the same sitting, upon the authority, as the presiding judge stated, of Horne Tooke’s case (25 St. Tr.), in which similar evidence had been received of a conviction of other persons than the prisoner. In Rex v. Bowman (6 C. & P., 101-337), when the conviction had been had at a former session, the proceedings were adjourned for several sessions, to enable the prisoner upon a second trial to take proceedings to compel the magistrates to make up a record.

It is, however, the result of all the English adjudged cases and the better construction of the authorities, that if judgment is stayed or suspended without affecting the conviction, as by the convict praying and obtaining benefit of clergy, this will not prevent the conviction being a bar to a second trial. And there is no doubt that if sentence upon the first conviction should be delayed or suspended for any cause other than error in the trial or insufficiency in the indictment, and the convict remained at all times exposed to its infliction, the conviction before judgment would sustain the plea of autrefois convict. In the case at bar the prisoner has indeed been decided not to be liable to the infliction of any sentence, but not for any cause connected with either the trial or the judgment, but by an. obstacle created by legislative action solely. As to the proof in such a case, equally as when judgment had been pronounced, the conviction must be proved by the records of the court in which it was had, but there cannot, of course, be a record of judgment containing a sentence.

I confess, however, that this question does not assume to' my mind the same importance in the present case, which was attached to it upon the argument. The pleas of the prisoner allege a trial, conviction and sentence, upon the same indictment to which she was now put to plead. They do not plead a judgment in terms, but they allege all the necessary and component proceedings and parts of a judgment. The replications, however, supply the defect if it be one, admitting and averring a judgment as well as a trial, conviction and sentence, in order to ave'r that such judgment and conviction have been reversed. The allegation in the replication is that the conviction, sentence, proceedings and judgment of the Oyer and Terminer, were reversed and annulled in .the manner and for the cause specified. The demurrer of the prisoner admits this allegation of fact, and it therefore is a part of the record before us that the conviction as well as the judgment has been reversed, and if the character of that reversal is not such as to leave to the prisoner the benefit of the judgment upon the present pleas, it must have the same-consequences as to the conviction. A reversal of the judgment for - error in the proceedings, would necessarily import and involve the reversal of the conviction. So if this court had discharged the prisoner instead of ordering a new trial upon reversing the judgment for the causes stated in the opinion delivered on the former writ of error, the conviction must certainly have fallen with the judgment. It could 'not have been said to remain in force for any purpose, or to have any consequences against the prisoner, after the reversal of the judgment upon it.

■ The question presented by these demurrers upon the present branch of the case, in my opinion is, whether such a reversal of the judgment and conviction as is pleaded in the replications, prevents that conviction from being a bar to a subsequent trial. I do not, in this aspect of the case, any more than in the preliminary part of it, attach importance to the fact that a new trial was ordered by this court. The report of the case which is incorporated in and pleaded as part of "the reply, states that a new trial was ordered because the court could not see judicially that the prisoner could not be convicted of manslaughter in this indictment. Whether this was so or not would not seem to have been carefully considered by the court, and the question would probably be reconsidered if it should become necessary. But as the record is now presented there is no plea of not guilty, and the prisoner confesses the crime of murder and avoids it by the special matter which she pleads. Both parties admit upon the record that the prisoner if convicted at all must be convicted of the offence of which she is indicted, and the single question presented by the demurrer is, whether the reversal of her previous conviction and sentence pleaded in the replication destroys the bar of such former conviction.

The law is laid down by the authorities that a former conviction to bar a second trial must be upon a sufficient indictment, and before a competent court. (2 Hawk. Pl. Cr., ch. 35, § 8; 2 Hale, Pl. Cor., 248.) In the case of The People v. Barrett (1 J. R., 66), the Supreme Court held that they would look into the first indictment and ascertain whether it would have sustained a conviction, and Chief Justice Kent said that if the first indictment was defective so that no good judgment could be given upon it, an acquittal upon such indictment would be no bar. In a case where judgment had been arrested on account of the insufficiency of the indictment, or where’it had been reversed for error at the trial, it is open to no question that the prisoner might be tried again. And upon a reversal of a judgment rendered on the conviction of a prisoner, it would be a necessary presumption, nothing appearing to the contrary that the reversal was for error either in the indictment or at the trial, and in such case of course such conviction and judgment would no longer be in the way of a second trial. So in- The People v. Casborus (13 J. R, 351), a plea of a former judgment in bar was overruled, on it appearing that the court which gave it had arrested judgment. But in the case at bar the record brings before us the fact that although the former conviction and judgment against the prisoner have been reversed, yet that such reversal was not' for insufficiency in the indictment, nor for error at the trial, but for matter subsequent and dehors both the conviction and the judgment. The Court of Appeals expressly held, and the people and the prisoner both admit by these pleadings that the conviction of the .prisoner, and thé sentence and judgment which followed thereon, were valid and free from error when they were had and pronounced. The judgment of this court was simply that this judgment of the Supreme Court and the Court of Oyer and Terminer ought not to be executed. The court do indeed say that they reverse that judgment for error in the record. But this does not mean that the record discloses any error in itself, but that the judgment was found to be erroneous by applying to it the law as it then stood. In other words, it is reversed just as it would be arrested by the court which gave it, on the ground that its execution had by subsequent matter become unlawful o.r impossible. If the first judgment had been arrested for such a cause by the Court of Oyer and Terminer, as Judge Dentó intimates might have been done, and as was done in the English cases referred to in his opinion, no one could have said that such a judgment upon a valid trial and sentence would not have been a bar to a second trial, notwithstanding its execution was arrested. So in England when after judgment the offender prays his benefit of clergy and goes without sentence. In such cases the arrest, or suspension, or reversal, appears on the record to have been for causes which did not affect the conviction. The reversal in this court of the former judgment in this case is strongly analogous to the result of praying benefit of clergy in England in its consequences. The fact remains, notwithstanding it, that this prisoner has been tried, convicted and sentenced without error in the process, indictment, pleading and trial. As this appears from the record itself, I have no hesitation in saying that the replications were no answer to the pleas, and that the judgment of the Oyer and Terminer upon the demurrer to the first two replications was right.

It may be proper to add, that this opinion was prepared, and these views expressed, without the writer having been informed precisely of the reasoning by which the court reached its conclusions in the case of Shepherd v. The People. I have not been furnished with any copy of the opinion in that case, and it may be that what has now been said is merely a repetition of what has been already adjudged in that court. If so, the present decision may be placed more securely on the authority of that case. This woman by the record before us confesses herself guilty of murder. She has been duly and legally indicted, tried and convicted of the crime by a competent court, and there was neither insufficiency in the indictment nor error at the trial. If she has not suffered any punishment, and is not exposed to the infliction of any, it is due, not to anything done or omitted by the court or the jury which tried her, but to action on the part of the legislature so unexampled, as to leave the courts without a precedent by which to measure its consequences. She has once-been in legal jeopardy of her life, and there is no power in the courts under the rule of the common law, and the injunction of the Constitution to compel her to stand in the like peril a second time. If it should be done in the present case to prevent a criminal from escaping altogether from punishment, a similar departure from the time-honored maxim of the law might in the next case visit the innocent and fairly acquitted with infamy, or redouble the penalty which the law inflicts upon offenders. There is no rule of public justice which commends itself more manifestly to conscience than that which forbids a man to be twice vexed for the same offence, and makes the result of a fair and lawful trial, be it conviction or acquittal, binding alike upon the accuser and the accused. As we have found no technical difficulty in the way of the application of that rule to this case, we are bound to declare that the con-. viction of the prisoner standing upon the record unimpeached in law or in fact, and only arrested by subsequent action of legislative power, is a bar to any subsequent trial for the same offence.

Having reached this conclusion, it is unnecessary for me to determine the effect of the repeal of the statute of 1860, and the passage of that of 1861, as set up in the third plea and replication, and I shall not enter upon the consideration of that question.

The judgment of the Supreme Court should be reversed and that of the Oyer and Terminer affirmed, and the prisoner discharged.

Balcom, J.

The prisoner was legally and properly convicted of the crime of murder in the Albany Oyer and Terminer, and sentenced by that court to be executed at a specified time, within eight weeks from the time of her sentence, without the intervention of any irregularity or error. But by reason of the passage of chapter 410 of the Laws of 1860, this court reversed her conviction and granted her a new trial. (22 N. Y., 95.) On her retrial she pleaded her first trial and her conviction then had in bar of her further prosecution for the same offence. I am of the opinion such plea was valid. She is protected from further prosecution for the same offence, by the Constitution of this State and of the United States; The former declares that no person shall be subject twice to be put in jeopardy for the same offence. (Con., Art. 1, § 6.) The latter, “ nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” (Art. 5, Am’d, Con. U. S.) For these reasons I shall vote to reverse the judgment of the Supreme Court and affirm that of the Oyer and Terminer, and for the unconditional discharge of the prisoner.

All the judges concurring,

Judgment ordered accordingly.


author: Davies, J.

text:
    Harwood v. The People.
    On the trial of an indictment for keeping a bawdy house, evidence is admissible of repeated arrests of girls at the prisoner’s house upon the charge that they were prostitutes; that the prisoner procured bail ior them; that such arrests were made at late hours in the night; and that women before convicted as prostitutes were frequently found at his house.
    The plaintiff in error was indicted in the General Sessions of Onondaga county, for keeping and maintaining a certain bawdy house, and for receiving and entertaining therein,» lewd and wicked men and women—for lucre and gain—for immoral and unlawful purposes. On the trial in the sessions, the plaintiff in error was convicted of the crime charged in the indictment, and sentenced to pay a fine of $100, and to be imprisoned in the penitentiary of Onondaga county at hard labor for the term of six months. The prisoner presented exceptions, which were incorporatéd into a bill, and on hearing at a general term of the Supreme Court, were overrated and the conviction affirmed. From this judgment the plaintiff brought his writ of error to this court. On the trial the District Attorney asked a policeman, who had testified, that he had frequently been at the house of the'plaintiff, what was the object of your visits there? This was objected to by the plaintiff; the objection overruled and the question answered. The following questions were put and answered under an objection and exceptions to the evidence in each instance. The witness having stated that the object of his visits were to make arrests, and that at late hours of the night he had arrested certain women found there, naming them, was then asked: Were these girls arrested as prostitutes at ,his house. The witness having answered that they were arrested as prostitutes, was then asked: What was done with them ? The witness having answered that they were taken to the police office, where some were fined and some procured bail, and that the plaintiff made himself busy in procuring bail for them, was asked: Did the plaintiff offer to procure bail for them ? The witness was also asked: When did you last make an arrest there? Did the plaintiff procure bail for them? meaning the persons so arrested. Michael Tobin, a witness for the prosecution, also a police officer, was asked if he had made arrests there, that is, at the plaintiff’s house. The court charged the jury that the frequent arrests of females at the plaintiff’s house, theretofore convicted as prostitutes, was a circumstance to be taken into consideration by the jury, in making up their verdict; to which portion of the charge the plaintiff’s counsel.also excepted.

      John C. Hunt, for the plaintiff.

      Frank Hiscock, for the People.
   Davies, J.

The indictment charged the plaintiff in error with keeping a bawdy house. It was proved that he kept a house in the city of Syracuse, and to make out the offence, it was necessary to establish the character or kind of house so kept by him. A bawdy house is defined to be a house of ill-fame, kept for the resort and unlawful commerce of lewd people of both sexes. (Bouv. Law Dic., vol. 1, p. 163.) It was essential therefore, for the prosecution to establish the character of the house, and to show the character of the persons frequenting or occupying it. The questions put to the witnesses objected to, only called out the fact that females were found in the house of the plaintiff and were taken from there, before a magistrate, and convicted as prostitutes, and punished as such. This was prima facie evidence of the character of the persons frequenting the plaintiff’s house, and was legitimate and proper evidence, to establish such character. Proof that prostitutes were found frequently at the plaintiff’s house, and were notoriously so, were circumstances bearing directly on the issue, whether the plaintiff kept a bawdy house or house of ill-fame, and the jury would be warranted in finding as they did, from such circumstances and the additional one that convicted and notorious prostitutes were frequently arrested there, that he kept a house of that character. The materiality of the inquiry did not consist in the fact that arrests of such women were made in the plaintiff’s house, but in the fact that women of such character were frequently found there, and permitted there after their arrest and conviction as prostitutes. The inquiry as to the agency of the plaintiff in procuring bail for them, when arrested upon such charges, was eminently legitimate as tending to show his knowledge of the character of the women occupying and frequenting his house. A man careful of the reputation of his house, and regulating it upon correct principles, is not accustomed to have found there women notoriously charged with the offence of prostitution; and for the purpose of fixing on the plaintiff the knowledge of the character of the inmates of his house, and as their character and habits determined the kind and character of the house he kept, it was proper to show that he knew of these charges against them, and that such knowledge was evidenced by Ms becoming bail for them before the police magistrate. The time of making the arrests was of no materiality, except as indicating the presence in the plaintiff’s house of women of the character his inmates were proved to be, and the time when they were thus found to be there, was a material inquiry; and in this aspect, the questions as to the time of making the arrests and when last made, were properly allowed to be put.

In the view we take of this case, and the facts necessary to be established by the prosecution, to warrant the jury in convicting the plaintiff, the judge correctly told the jury that the frequent arrests at the plaintiff’s house of females, theretofore convicted as prostitutes, was a circumstance proper to be taken into consideration by the jury in making up their verdict. It was not the fact that such females were frequently arrested in the plaintiff’s house, which gave point and significance to this part of the charge, but the fact that females theretofore convicted as prostitutes were frequently found in the plaintiff’s house. The fact of such conviction stamped them as prostitutes, and its notoriety, and the circumstance of such frequent arrests must have brought home to the plaintiff knowledge of their character. The character of the inmates of the plantiff’s house determined the kind of house he kept, and if it was frequented by prostitutes, notoriously so, and they were frequently arrested there by police officers, the jury were authorized to find it was a bawdy house or house of ill-fame.

We see no error in the admission of the evidence objected to, or in that part of the charge excepted to, and think the judgment should be affirmed.

Judgment affirmed.


author: Wright, J. Balcom, J., (dissenting.)

text:
    The People v. Clements.
    To convict one charged with uttering a counterfeit bank check set out in the indictment and purporting to have been certified by some person purporting to be connected with the bank on which the check was drawn, it is sufficient to prove that the words of certification were false, and that no person of the name signed to the certificate was connected with the bank, without showing that the signature of the drawers was a forgery.
    A certified check on a bank is an instrument which, as an entirety, comes within the statute of forgery; and where evidence, received without objection, shows that any material part of it was forged, e. g.t the certificate, it is immaterial that the indictment does not specify that the forgery was of the certification, and not of the check itself.
    The indictment need not aver that the paper is, in the words of the statute, “an order for'the payment of money, or any instrument by which a pecuniary demand is created.”

      Rex v. Horwdl (6 Carr. &Pa,, 148,) distinguished, on the diversity between our statute and the British.
    The defendant was convicted in the Mew York Court of Sessions on an indictment charging him, in distinct counts, with forging and uttering a certain false instrument and writing, which instrument and writing was set out in the indictment in hcec verba, and was as follows:

      “ No. 492. Jersey City, Sept. 8, 1861.
    The Bank of Jersey City:
    Pay to the order of Livermore, Clews & Mason, twenty-four hundred and sixty-six dollars and ninety-three cents.
    M. Barker & Son.
    $2,466.93. Certified by Sparks’ Bank, J. C.”
    On the trial it was proved by the prosecution that on * the 2d September, 1861, the prisoner came to the store of Livermore, Clews & Mason, and presented a sealed letter. ■Clews read the letter and marked at the foot .thereof the price at which five treasury notes of $500 each would be supplied, and a clerk of the firm made out a statement at that price, and handed it, with the letter, to the prisoner; the latter inquiring when he could have the notes. The next morning (Sept. 3) the prisoner presented a second letter enclosing the certified bank check set out in the indictment. The clerk saw that the check was for the amount of the statement, and appeared to be certified, and he handed the prisoner the five treasury notes of $500 each, and the latter left the store a few minutes afterwards.
    The check was read in evidence, and the' prosecution further proved, that there was no clerk or teller by the name of Sparks, and no person of such name in the Bank of Jersey City,, and that the certificate on the check in question was not the certificate of the bank or any one authorized to certify by the bank. That Hatch, the cashier, and Post the teller, only certified checks, and that certified checks of the bank to' be used in Hew York were stamped payable at Ocean Bank. Ho evidence was offered by the defendant.'
    The Recorder charged the jury to' the effect that if they were satisfied, from the evidence, that the certificate on the check was a forgery, and that the defendant uttered such check with the forged certificate thereon, knowing the same to be forged, and with the intent to defraud, it would be the duty of the jury to convict. To this the prisoner excepted.
    The court refused to charge, on request of the prisoner, the following propositions:

      1st. In order to sustain- the indictment the prosecution is bound to prove that the signature of M. Barker & Son is a forgery. Ho such evidence has been adduced.
    2d. The indictment does not charge that the alleged forged instrument is “an order for the payment of money, or an instrument by which any pecuniary demand is created,” which averment is essential.
    3d. The indictment does not charge the forgery of the certificate, which is no part of the check, and, is not essential to its validity, and creates no demand or obligation for the payment, and the prisoner cannot be convicted under this indict-. ment which charges only the forgery of the check.
    The prisoner’s counsel further requested the court to charge that if the firm of M. Barker & Son had no account in the Bank of Jersey City, and the prisoner knowing the fact, fraudulently obtained the treasury notes from Livermore, Clews & Mason, he was guilty of obtaining money by a false token, and cannot be convicted under this indictment. The court charged that the first part of this proposition was correct; but refused to charge as requested in the latter portion -thereof; to which refusal the counsel for the prisoner excepted.
    The jury found the prisoner guilty; and on error to the Supreme Court, the judgment was reversed. The People brought error to this court.

      A. Oakey Hall, for the plaintiff in error.
    No one appearing for the defendant in error.
   Wright, J.

The indictment charged the defendant with uttering a certain false, forged and counterfeited instrument in writing, which was set forth in full in such indictment, and purported to be # well-recognized commercial instrument, viz.: a certified bank check. 'The evidence disclosed that the defendant brought the false instrument in the precise form in which it is set forth in the indictment, to the banking firm of Livermore, Clews & Co., and uttered and used it for the purchase of treasury notes to the amount of twenty-five hundred dollars; and it was affirmatively shown that a part of the instrument or writing thus uttered as an entirety, viz., the words of certification, were false. There was no evidence • given by the defendant, and none appeared throughout the trial, tending to show that the instrument so uttered as an entirety was in any part valid, or true as an original check of the drawer, or that it ever" had any other existence than in the entire form of figures and words in which it was uttered and set out in the indictment. It is a felony by statute to utter or publish as true, with intent to defraud, and knowing it to be false, any forged, altered or counterfeited instrument or writing, being or purporting to be the act of another by which any pecuniary demand or obligation shall be, or shall 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; and by which forgery, altering or counterfeiting any person may be affected, bound, or in any way injured in his person or property.” (2 R. S., 673, §§ 33, 39.) A certified bank check falls within this statute definition of forgery, and if the defendant uttered such an instrument or writing, knowing the same to be forged, and with intent to defraud, the Recorder was right in his charge, that it was the duty of the jury to convict.

It is true that an indictment should be so certain and precise as to enable the accused to judge whether the facts and circumstances stated constitute an indictable offence: or, to apprise the prisoner of the nature of the offence ^against which he is to prepare his defence, and that he may plead a conviction or acquittal in bar of another indictment. The present indictment informed the accused of the entire instrument which he uttered, or of the precise shape in whiQh he had uttered it, and alleged it to be a false instrument. When, therefore, the evidence came, unobjected to, showing any portion of it false, it seems to me that the accused was brought within all the rights guaranteed to him by the law of criminal pleading. The case of the Rex v. Horwell (6 Carr. & Payne., 148), is not an authority to the contrary. That case turned upon • a peculiarity of the British .statutes. In one count of the indictment the prisoner was charged with uttering a forged bill of exchange, with intent to defraud A B, and setting out the bill and acceptance upon it; and another count stated that the prisoner had a bill in his possession (which was set out) with a "forged acceptance on it (which was also set out), and that he, knowing the acceptance to be forged, uttered the bill. with intent to defraud A B. It was proved that the "acceptance was forged, but there was no evidence to show that the signature of the drawer was not a genuine signature. The counsel for the prisoner said: “ I submit that the prisoner cannot be convicted because the acceptance is no part of the bill within the statute. (1 Will. IV, ch. 66.) The statute has made a distinction between the bill and the acceptance, for it uses both terms.” It is to be observed that part of the count alleged the utterance of a forged bill of exchange, and charged the accused with knowing the acceptance to be forged, and the pleading thus became descriptive by the terms of limitation. The prisoner was convicted,— Gurney, B., reserving the point for the consideration of the fifteen judges, who afterwards held the conviction wrong. Our statute does not distinguish between a draft and an acceptance; but declares that it shall be forgery in the third degree to falsely make, alter, forge or counterfeit “ any instrument or writing being, or purporting to be, the act of another, by which any pecuniary demand or ■ obligation shall be, or purport to be, created,” &c.

The indictment in this case set but the instrument in the precise form in which it was uttered. The prisoner was, therefore, distinctly told what his offence was, and the charge that he must prepare himself to meet, viz.: the forging and uttering a certified bank check. A conviction or acquittal of the offence charged under the indictment could undoubtedly be pleaded in bar of another indictment. It is true there was only affirmative proof that a part of the instrument or writing was false; but that was sufficient to support the proved to have been uttered and published as a true instrument, when it was false in the essential particular which recommended its validity to the taker. There was no force in the claim that the instrument was divisible into parts; nor was there error in the refusal to charge substantially that the signature of the drawer alone could be proven to be false under the indictment, and not the certificate. There was nothing to show the check the act of one party, and the certificate that of another. The indictment charged the prisoner with uttering a writing composed of several parts, but all uniting to make one well recognized commercial instrument, and the proof sustained it.

The judgment of the Supreme Court should be reversed and that of the Court of Sessions affirmed.

Denio, Ch. J., Davies, Rosekrans and Marvin, Js,, concurred.

Balcom, J., (dissenting.)

The indictment charges the prisoner with forging and uttering as true, an instrument in writing, “ commonly called a bank check,” which is fully set out in the indictment; and it purported to have been drawn by M. Barker & Son, for $2,466.93, on the Bank of Jersey City j and the words “ certified by Sparks, Bank J. C.,” were written across the face of it. On the trial the only writing proved to have been forged was that written across the face of the check. The proof was that there was no such clerk as Sparks in the bank on which the check was drawn. The counsel for the prisoner requested the court to charge the jury that the indictment did not charge the forgery of the certificate, which was no part of the check and not essential to its validity, and that the prisoner could not be convicted under the indictment which charged only the forgery of the check. The court refused so to charge, and the prisoner’s counsel excepted. I am of the opinion the court erred in refusing so to charge the jury. It was held in Rex v. Horwell (6 Carr. & Payne, 148), that a count charging a prisoner .with uttering a forged bill with intent to defraud John Alcock and others, and setting out the bill and acceptance upon it, was not supported by proof that the prisoner uttered the bill, and that the acceptance on it was a forgery. Also that a count charging that the prisoner had a bill in his possession, which was set out, with a forged acceptance on it, which was also set out, and that he, knowing the acceptance to be forged, uttered the' bill with intent to defraud" John Alcock and others, was not good because it did not charge that the prisoner uttered the forged acceptance. That holding clearly was that the acceptance was no part of the bill.

The certificate written across the face of the check, in this case, was no part of the check itself. The check was perfect without it. The indictment should have 'charged that the prisoner forged the certificate or that he uttered the same as true, knowing it to be forged; or the district attorney should have proved that the check itself was forged.

It is true that our statute. makes the forging of the certificate a crime (3 R. S., 5th ed., p. 951, § 33; 1st ed., p. 673), but it does not authorize a conviction on a charge of forging the check upon proof merely of the forging of the certificate. The check and certificate are as clearly different instruments as a bill of exchange and an acceptance of it.

For these reasons I am of the opinion the prisoner was unlawfully convicted, and that the judgment of the Supreme Court, reversing his conviction, should be affirmed.

Selden and Emott, Js., concurred in this opinion.

Judgment of the Supreme Court reversed, and that of the Court of Sessions affirmed.


author: Emott, J.

text:
    Mason v. The People.
    Since the Revised Statutes, it is unnecessary, in an indictment for burglary in breaking, &c., with intent to commit a crime, to specify what kind ot felony was intended.
    In a tenement house, severed by lease into distinct habitations, each room or suite of rooms occupied by a tenant is his dwelling house, and a door of .such room is an outer door so that a breach of it in the daytime is ' burglary, though the common door, for passage into the street, be open.
    ' Error to the '¿Supreme Court. The plaintiff in error was indicted in the New York General Sessions. The first count charged him with feloniously and burglariously breaking and entering, in the daytime, the dwelling-house of Christopher Thomas, “ with intent to commit some crime therein,” but not specifying what crime. The second count charged a larceny, in the dwelling-house before-mentioned, of a gold ring, the property of Minna Thomas. The evidence was that Thomas and his wife Minna occupied three rooms in what is known as a tenement-house, for which they paid rent monthly. Three other families occupied different apartments of the same house, one of these families having rooms on the same floor with Thomas. There was one common door of entrance into the house, which opened from the street into the first floor or story, through which all the tenants passed to their respective apartments. When the offence was committed the front door was open, the prisoner breaking only the door of Mrs. Thomas’ room, which she had left locked. The prisoner’s counsel asked the court to charge that breaking an inner door in the daytime with intent to steal is not a burglary. He maintained that the outer door of the house was the outer door of every tenant living within; that the criminal breaking of that door would have been a burglary of the dwelling-house of the tenant whose property the offender intended to steal; and that, as a consequence, the breaking of the inner door was not, because a double burglary could not be committed by breaking first the street door and then the inner. The court refused to charge as requested, and the prisoner .took an exception. He was convicted of burglary in the third degree, and the judgment having been affirmed by the Supreme Court in the first district, he appealed to this court.

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

      A. Oakey Hall, for The People.
   Emott, J.

It seems to have been considered, by all the authorities, before the Revised Statutes, both in England and in this State, that in an indictment for burglary it was necessary, not only to aver that the prisoner broke and entered the premises with intent to commit a felony, but to state what felony he intended. And the intent must have been correctly stated; for, if the entry was alleged to be with the intent to commit one kind of felony, and the evidence showed that another was designed, the prisoner could no.t be convicted. (1 Hale Pl. Cor., 561; 2 East. Pl. Crown, 514; 3 Chit. Cr. L., 1098.) The definition of burglary, at common law, was the breaking and entering the house of another with intent to commit some felony therein. - The Revised Statutes have substituted a definition of the crime as a breaking and entering a dwelling, &c., with intent to commit some.'crime therein. The Revised Statutes do not, however, by this section, create a new offence, and their provisions do not affect or alter the degree of particularity required in the statement of the offence in an indictment. The indictment in this case was, in my opinion, defective in merely averring, in the count for burglary, that the,prisoner intended to commit a crime, without stating what crime. The defect would not be aided by the second count, which is a separate count for a larceny. If the first count had charged that the prisoner feloniously, &c., broke and entered, &o., and did then and there steal certain property, charging the commission of a crime in fact by the prisoner when he had entered the house, and the fact were so, this would do away with the necessity of a charge of a felonious or criminal intent, since such an intent would be involved in the actual commission of the crime. But I do not readily perceive how the first count for burglary, if defective in itself, would be aided by the second count for the distinct offence of larceny.

The defect, however, is one of form, not of substance. The indictment charges the crime of burglary in the language of the statute, but not with that degree of particularity which the rules of criminal pleading require and the prisoner had a right to demand. Such a defect might have been taken advantage of by demurrer, or by objection to the evidence at the trial. There was, however, no demurrer, no objection at the . trial, nór was the point raised in any manner in the court below. The district attorney proved, without objection, that the prisoner burglariously entered certain apartments 'of one Christopher Thomas and stole a ring from thence; and the prisoner’s counsel, passing by any difficulty in the form of the indictment, and making no objection to the evidence under it, asked the court to charge the jury that breaking and entering these apartments with' intent to steal was not a burglary. Such an objection as is now made to the form of the indictment in respect to particularity, comes too late upon writ of " error after judgment. It is evident that the prisoner was not misled, and the defect is within the statute of Jeofails. (2 R. S., p. 728, §52; 5 Wend,, 9; 2 Seld., 50.) As to the’ objection taken at the trial that burglary could not be committed by breaking and entering apartments in what is known in cities as a tenement house, a building occupied separately by several families, each having distinct apartments' opening into a common hall, and thus communicating with the street, it has, in my judgment, no foundation. Any and every settled habitation of a man and his family is his house or his mansion, in respect to its burglarious entry. It was so held before Lord Hale’s time as to chambers in colleges and inns of court, and even as to a chamber hired by A in the house of B, for lodging for a specified time. (Hale Pl. Cor., I., p. 556.) Sergeant Hawkins (Cr. Law, vol. I, p. 163), gives the same rule as to tenement or lodging houses, except that he seems to suppose that a difference might arise when the owner of the house himself lived in it. But such an exception would only lie where the other inmates were lodgers with the owner, and not proprietors of distinct tenements separately hired and occupied for a longer or shorter time, with access either separately or jointly to the street. Wherever a building is severed by lease into distinct habitations, each becomes the mansion or dwelling house of the lessee thereof, and is entitled to all the privileges of an individual dwelling. The case of the People v. Bush (3 Park. Cr. R., 556), was precisely like the one at bar, and it was there held by three judges of the Supreme Court, of whom the one pronouncing the opinion was a learned and experb enced criminal lawyer, that a room or rooms in a tenement house, rented to separate families with a door and entry common to all, constituted each the dwelling house of the particular occupant in the sense of the law. Such we understand to be the well-settled rule.

The judgment of the Supreme Court affirming that of the Court of Sessions was right, and must be affirmed in this court.

Selden, J., concurred in this opinion: all the other judges also concurred, except that they thought that the indictment was good, and that the objection to it would have been unavailing if taken in time.

Judgment affirmed.