author: Daniels, J.: Westbrook, J.:

text:
    THE PEOPLE ex rel. WILLIAM M. TWEED v. JOSEPH L. LISCOMB, Warden, etc.

      Bevised Statutes relative to sentence of imprisonment in county jail—when applicable to ease where sentence and commitment are for imprisonment in penitentia/ry — Misdemeanors—jurisdiction of Special Sessions of New York over— Technical words in statute—construction of—Habeas corpus— what cannot be inquired into upon return of—Indictment—when two or more distinct offenses may be alleged in, in different counts, and sentence pronounced upon each—when prosecuting officer not put to an election — Ju/ry—manner of selection of, within legislative control.

    A statute providing that whenever a sentence of imprisonment in a county jail shall be pronounced upon any person convicted of any offense, the clerk of the court shall, as soon as may be, make out and deliver to the sheriff of the county a transcript of the entry of such conviction in the minutes of the court, and of the sentence thereupon, duly certified by such clerk, which shall be a sufficient authority to such sheriff to execute such sentence, and he shall execute the same accordingly (3 R. S. [5th ed.], p. 1032, § 13), is applicable to a case in which the sentence and commitment are for imprisonment in the penitentiary, it being provided by statute that such penitentiary should become one of the jails of the city by the name of the penitentiary of New York, and that it should thenceforth continue the jail of said city for the confinement and safe keeping of all persons convicted of any crime or misdemeanor and sentenced to confinement therein by any Court of Oyer and Terminer in said city, and that the keeper of such penitentiary should keep all persons committed to it in the same manner and under the same penalties as the sheriffs of other counties in the State ought to keep, in the jails of the respective counties, the criminals committed to them. (Laws of 1814, chap. 176, §§ 1, 3.)
    Where the sentence and commitment direct that the criminal be confined in the penitentiary, and by the judgment record it appears that he is to be confined in the county jail, the signification.of the terms used as descriptive of the prison must be determined by the circumstances under which they were used; and it must be understood that the jail referred to was the one in which the prisoner could be properly imprisoned, which, in this case, was the penitentiary.
    Section 5, chapter 337, of the Laws of 1855, which provides. that “ the Court of Special Sessions of the Peace, in and for the city and county of New York, shall have power to hear, determine and punish," according to law, all complaints for misdemeanors, and shall possess exclusive jurisdiction thereof, unless,” etc., does not give the Special Sessions exclusive jurisdiction of all misdemeanors, but only of complaints of misdemeanors, which includes only cases commenced by complaint, technically understood as the foundation for a warrant in the mode prescribed by the Revised Statutes. Where technical words occur in a statute they are to be taken in a technical sense, unless it appears that they were intended to be applied differently from their ordinaiy or legal acceptation.
    Where a court has jurisdiction to try the charges contained in an indictment, and after conviction to impose punishment upon the prisoner for the offense of which he has been convicted, the legality or propriety of its action cannot fie investigated or determined upon the return to a writ of habeas corpus.

    If, on the return to a writ of habeas corpus, it appears that the relator is held under the final judgment, by virtue of process issued to execute it, of a court of competent criminal jurisdiction, it is the duty of the court, to which the return is made, to recommit the relator.
    Where the court,' on the trial of indictment, sentences the prisoner for distinct terms of .imprisonment upon several convictions of misdemeanors, under several different counts of the indictment, the question of its right to impose more than-one such term of imprisonment under the indictment, cannot be reviewed on the return to a writ of habeas corpus.

    Every indictment which contains more than a single count, assumes to charge a separate and different offense in each.
    Two or more distinct offenses may be included in one indictment in several counts, where the offenses are of the same general nature, and where the mode of trial and the nature of the punishment are also similar or the same; and upon conviction of more than one offense, the prisoner may be sentenced for each. In case of felonies the prosecuting officer may, in the discretion of the court, be put to an election, but in the case of misdemeanors he may join and try several distinct offenses in the same indictment, and cannot be compelled to elect on which one he will proceed.
    Chapter 437 of the Laws of 1878, providing for the trial of all challenges by the court, and chapter 475 of 1873, providing that the previous formation or expression of an opinion, etc., in certain cases shall not disqualify a person summoned as a juror, are not obnoxious to any constitutional provision, the mode and manner of the selection of a jury being matters of legislative control. If it were otherwise, the question cannot be inquired into on the return to a writ of habeas corpus.

    A statute prescribing a penalty to be recovered in a civil action for a simple refusal or neglect to perform a duty, does not prescribe the punishment on conviction, in a criminal proceeding for a willful neglect of duty by a public officer.
    The relator was brought before the Court of Oyer and Terminer of the county of blew York on a writ of habeas corpus. Upon the return made to the writ, and the traverse of the relator, a motion was made to the court for his discharge from imprisonment. That was denied and the writ dismissed. The relator thereupon procured a writ of certiorari to the Court of Oyer and Terminer, on the return to which the case is now before this court.
    For a very full statement of facts, see the opinion of Judge Westbrook, page 774.

      Da/oid Dudley Field, George F. Comstock, William Fullerton, William 0. Ba/rtlett, Flihu Root, Willa/rd Bartlett, Dudley Field,

      Edward JR. Bacon, for the relator.
    Authorities to show that the .distinction, taken in England between felonies and misdemeanors, with respect to the joinder of offenses in one indictment, is not applicable to our jurisprudence: (King v. Roberts, Carth., 226; Rex v. Benfield, 2 Burr., 980; Young v. King, 3 T. R., 105; R. v. Jones, 2 Camp., 132; R. v. Saunders, 2 Burr., 984; R. v. Kingston, 8 East, 41.) The reasons why the joinder of misdemeanors is permitted in England have no application here.' There it is permitted simply because in cases of misdemeanor, no challenge is allowed, nor a motion to quash or to elect; here all these are allowed. Oessante ratione, cessat lex. Authority to show that, as a general rule of the common law, only one crime can be charged in one indictment. (State v. Lincoln, 49 N. H., 465; see 1 Bishop on Crim. Proc., §§ 205-213; The State v. Porter, 26 Mo., 201; Hampton v. The State, 8 Humph., 69; McGregg v. The State, 4 Blackf., 101; Baker v. The State, 4 Pike, 56; Kane v. The State, 8 Wend., 203; United States v. Pirates, 5 Wheat., 201; The State v. Canterbury, 28 N. H., 226; The State v. Fly, 26 Me., 312; The State v. Marvin, 35 N. H., 26; Wharton’s Crim. Law, 204, 207; 1 Archb. Cr. Pl., 95.) The respondent’s counsel do not distinguish between the joinder of disconnected offenses and the awarding of cumulative sentences thereon. We do not find a single case cited of the joinder of disconnected offenses, except United States v. O’Callahan (6 McLean, 598), which was expressly authorized by act of Congress; the case of Com. v. Hills (10 Cush., 590), which rests upon the peculiar practice of Massachusetts; and cases under excise laws, depending upon special statutes. The cases of Rex v. Fussell (3 Cox Cr. Oases, 291); Young v. King (3 T. R., 98); O’Connell’s case (11 Cl. & Pin., 155); Rex v. Jones (2 Camp., 132); Gregory v. Reginan (15 Q. B., 974); State v. Kirby (7 Mo., 317); Com. v. Birdsall (69 Penn.; 482); Com. v. Sylvester (Brightly, 331); Harwood v. Com. (2 P. F. Smith, 424); Carlton v. Com. (5 Met., 532); Joslyn v. Com. (6 id., 236); Crowley v. Com. (11 id., 575); Kite v. Com. (id., 586); State v. Fuller (34 Conn., 280); Kane v. People (8 Wend., 2(4); People v. Rynders (12 id., 429); People v. Baker (3 Hill, 159), and People v. Costello (1 Den., 83), all appear to have been cases of" connected offenses, several counts being inserted for different aspects of one transaction. Cumulative sentences: (5 Met., 532, 535 ; 6 McLean, 594; Com. v. Birdsall, 69 Penn., 482; Wharton’s Am. C. L. [ed. 1868], §§ 415, 416, 417,421; Com. v. Gillespie, 7 S. & R., 469; Harmon v. Com., 12 id., 69; Com. v. Sylvester, Brightly, 331, and Henwood v. Com., 2 P. F. Smith, 424.) Authorities to show that the common law does not authorize sentences to cumulative imprisonments—that is, to imprisonments one after the other—where each imprisonment is for the full term authorized by law for the particular offense: (James v. Ward, 2 Met. [Ky.], 271 [1859]; Rex v. Wilkes, 4 Burr., 325; Glines v. Smith, 48 N. H., 270 [1869]; Miller v. Allen, 11 Ind., 389 [1858].)

      Benjamin K. Phelps and Wheeler H. Peckham, for the people.
    Inasmuch as it appeared by the petition, the return, and the so-called traverse to the return, that the petitioner was held under a final judgment of the Court of Oyer and Terminer upon a conviction in that court, the writ was properly dismissed and the prisoner remanded. (R. S., part 3, chap. 9, title 1, article 2; 2 Edm. Stat., p. 583 et secy.; id., p. 584, § 22.) By the limitations of the forty-first section of the habeas corpus act (2 Edm. Stat., p. 588), these inquiries can only be made where the imprisonment is under civil process; and by section 42 the court is expressly forbidden to inquire into the justice or legality of any “final judgment or decree of any competent tribunal of criminal jurisdiction.” (People v. Cavanagh, 2 Parker C. R., 650; People v. Fancher, 9 S. C. R. [2 Hun], 226; Ingersoll on Habeas Corpus, Phila., 1849; note to McLeod’s case, 3 Hill, 659.) “ The principal, if not the only object of the forty-eighth section, was to provide for cases where the party is restrained of his liberty without the authority of legal process.”. (People v. Cassels, 5 Hill, 164.) If there has been error, the remedy is by certiorari or writ of error. (See also People v. Nevins, 1 Hill, 154; Bennac v. The People, 4 Barb., 31 [Clinton Gen. T., 1848].) “ The general provisions of this habeas corpus act show most clearly that it was never intended as a writ of review to correct the errors of inferior tribunals.” (In the Matter of Prime, 1 Barb., 340 [N. Y. Gen. T., 1847].) The Court of Oyer and Terminer being a court of general and criminal jurisdiction, and having assumed and exercised jurisdiction in this case, that jurisdiction cannot be attacked collaterally in this proceeding. (People v. Cormack, 4 Park. Cr., 9; People ex rel. Rice v. Keeper of Penitentiary, 37 How. Pr., 494.) “ Both inferior and superior courts are, in general, the final judges whether the subject-matter was within their jurisdiction and their record is con'clusive.” (3 Hill, 666; Cowen & Hill’s notes to Phill. Ev., vol. 2, p, 160 et seq.; Wood v. Peake, 8 Johns., 69; Rogers v. Bradshaw, 20 id., 739; Cook v. Darling, 18 Pick., 393; Ferguson v. Mahon, 11 Adolph. & Ell., 179; Hart v. Seixas, 21 Wend., 47, 48, and cases there cited; Ex parte Kellogg, 6 Venn., 509, 511.) By the Revised Statutes (2 Edm., 766), as amended by act of 1863, the appellate court has power, when the conviction has been legal and regular, to remit the record to the court in which conviction was had to pass such sentence thereon as the said appellate court .may direct, and this power has been often exercised. (Matter of Ferris, 35 N. Y., 265.) It will be found that there never was any fixed or definite rule of law prohibiting the joinder of distinct crimes in one bill. (Arch. Cr. Pl. [17th Eng. ed.], p. 69, § 5; Rex v. Fussell, 3 Cox Cr. Cases, 291.) The practice of election was never extended to misdemeanors. (Young and others v. The King, 3 T. R., 98; O’Connell's case, 11 Cl. & Fin., 155; Rex v. Jones, 2 Camp., 132, per Lord Ellemborough.) “ When separate offenses are joined in one bill, they may and shbuld be punished by successive terms.” (Arch. Cr. PL [17th Eng. ed.], 173,174; Gregory v. Regina is a pertinent case, reported 15 Q. B., 974, and better in 19 L. J. [N. S.] [Q. B.], 366; O'Connell's case, 11 Cl. & Fin., 155, Ch. J. Tindal, 241; Commonwealth v. Birdsall, 69 Penn., 482, decided in 1871; Com. v. Sylvester, Brightly, 331; Henwood v. Com., 2 P. F. Smith, 424; Carlton v. Com., 5 Metc., 532; Joslyn v. Com., 6 id., 236, felony; Com. v. Hills, 10 Cush., 530; Crowley v. Com., 11 Metc., 575; Kite v. Com., id., 581.) If the record does not disclose that there were not several offenses, the court will presume that there were sufficient separate offenses proved to justify the sentence, and that the presiding judge, who heard the evidence, did according to the facts shown. (Com. v. Carey, 103 Mass., 214; State v. Fuller, 34 Conn., 280, 281, 282.) In our own State it is held, in People v. Baker (3 Hill, 159), that a motion to compel the prosecution to elect between several counts rests in the discretion of the court, and will not be reviewed on error. The cases of People v. Costello (1 Den., 83); People v. Kane (8 Wend., 214); People v. Rynders (12 id., 429), hold that- several misdemeanors may be found in one indictment, and seem to adopt the early common-law distinction, as to joinder of felonies and misdemeanors. (See 3 Wharton, § 3379 [7th ed.]; Hodgman v. The People, 4 Den., 236; People v. Costello, ante, p. 90; Sturges v. Spofford, 45 N. Y., 447; Johnson v. The Hudson River R. R. Co., 49 id., 457; Sturges v. Spofford, 52 Barb., 445.) The rule that aggregated penalties when incurred could be recovered in one action has long been settled in this State. (City of Brooklyn v. Cleves, Hill & Denio Suppl., 231.) In Massachusetts, the practice is still to pass one whole judgment and to sustain it, provided there are enough good counts in the indictment, notwithstanding there may be some bad ones. (Carlton v. Com., 5 Metc., 532, and other eases, ante.) The word “ complaint” is a technical one in criminal law, and always refers to proceedings before indictment or presentation to a grand jury. The word is so used in the Revised Statutes. (2 R. S. 706, [original paging], § 2; 3 id. [5th ed.], 993.) It is so used in Laws 1866, volume 1, page 168, chapter 95. (Laws 1845, ch. 180, § 17; 3 R. S. [5th ed.], 996, § 27; 2 R. S., 709, § 25, as amended by ch. 320, § 61 of Laws 1830.) In such a case two things are well settled: 1. That if any one of such counts is good, and will support the judgment, it is sufficient. (Roscoe’s Cr. Ev. [7th ed.], p. 219, top note 1, and cases cited.) For the purposes of a verdict and judgment “ each count is a distinct indictment.” (Id., 221 [top pag.], bottom of page, citing Latham v. Rex, 9 Cox O. C., 516; 5 B. & S., 635; 33 L. J. M. C., 197.) 2. That where there are several counts for the same offense, for which different punishments are provided, a general verdict thereon will support a conviction of the highest grade. (Conkey v. The People, 1 Abb. Ct. of App. Dec., 418; 3 R. S. [5th ed.], 980, § 55.)
   Daniels, J.:

From the return which the respondent made to the writ of habeas corpus, it was made to appear that the relator was in his custody, as warden of the penitentiary, upon a final conviction in the Court of Oyer and Terminer of the county of Hew York, for various misdemeanors. This appeared by the commitment itself, a copy of which was included in the return, and the direct statement of the fact in terms in such return. The commitment was in form and substance, as the statute required it should be, in order to justify the imprisonment and detention of the relator. The provision made upon this subject is, that “ whenever a sentence of imprisonment in a county jail shall he pronounced upon any person convicted of any offense, the clerk of the court shall, as soon as may be, make out and deliver to the sheriff of the county, a transcript of the entry of such conviction, in the minutes of the court, and of the sentence thereupon, duly certified by such clerk; which shall be a sufficient authority to such sheriff to execute such sentence, and he.shall execute the same accordingly.” The conviction and sentence of the relator were entered and certified as this section required that it should be. That very clearly appeared from the copies certified hy the clerk of the court, returned to the. writ of habeas corpus, and produced by the warden of the penitentiary on the hearing. The sentence, as well as the commitment 'of the relator, were for imprisonment in the penitentiary; but «that did not render the provision of this statute inapplicable to the proceeding, for the penitentiary mentioned was the county jail, or county prison, which is substantially the same thing, for the detention and punishment of persons convicted in the county of Hew York of offenses not punishable by imprisonment in the State prison, and not specially rendered punishable elsewhere. This is rendered very clear, by the provisions made upon the subject by chapter 176 of the Laws of 1814. -The preamble to that act recited that it was represented by the mayor, aldermen and commonalty of the' city of Hew York, that they were erecting, and had nearly completed, a . building designed to be used as a jail for the confinement of such offenders as were to be kept at labor during their imprisonment, and requested that it should be established as one of the jails of the city, and that the provisions, afterward made, should be enacted relative to the commitment of offenders to such prison. It was-then provided that the building referred to should become one of the jails of the city, by the name of the penitentiary of Hew York, and that it should thenceforth continue the jail- of said city, for the confinement and safe keeping of all persons convicted of any crime or misdemeanor, and sentenced to confinement therein by any Court of Oyer and Terminer in such city ; and that the keeper of such penitentiary should keep all persons committed to it, in the same manner, and under the same penalties, as the sheriffs of other counties in the State ought to keep in the jails of the respective counties the criminals committed to them. These provisions still remain in force without any substantial change in their effect, and they created the penitentiary a prison for the punishment and confinement of a class of offenders, convicted of offenses not punishable by imprisonment in a State prison. For that purpose it was created a jail of the city of Hew York, to which offenders convicted of misdemeanors, not only could be, but should be sent as they otherwise would have been, simply to the jail of the county. The keeper was required to receive and keep that class of offenders in the same manner as sheriffs of other counties received and kept the same description of persons ; and that, since' the Eevised Statutes went into effect, has been, by means and under the authority of the commitment, provided for by the section already quoted.

Other acts, more recently enacted, have, for certain purposes, referred to the prison, still under the special charge of the sheriff of the county of Hew York, as the county jail; but they in no way modified the provisions contained in the act of 1814, by which the penitentiary was created and designated a jail for the punishment of persons convicted of crimes. By that act it still continues to be the proper prison for persons convicted of misdemeanors in courts of Oyer and Terminer held in the city of .Hew York, as well as in the other courts mentioned in the law. And while it was denominated a city jail, the objects to which it was devoted render it in reality the city and county prison for the purposes designated in the act.

The relator was formally committed to that prison by the commitment which was issued, and, from the entry made in the minutes of the court, it appeal’s that he was actually sentenced upon his conviction to such imprisonment. In these respects the case presented was strictly conformed to what the act of 1814 required it should be, to render the imprisonment lawful and proper. If the statement contained in the judgment record is to be considered, no change will be produced by it which can result in any advantage to the relator. By that it appears that it was adjudged that he should be imprisoned in the county jail during the periods mentioned and declared. The signification of the terms used as descriptive of the prison, must be determined by the circumstances under which they were used. The relator had been convicted of certain misdemeanors properly punishable by imprisonment in the penitentiary, and for that purpose it had been lawfully designated as the jail to which such convicts could be sent by Courts of Oyer and Terminer held in the county of Hew York. It must, for these reasons, have been understood as well as designed, by adjudging that the relator should be imprisoned in the county jail, that the jail was referred to in.which that imprisonment could be properly made, and that was the penitentiary. This conclusion is very clearly indicated by the further circumstance, that, while the matter was still engaging the attention of the court and in process of consummation, the entry was made in its minutes, and the commitment issued expressly designating the penitentiary as the prison in which it was intended the relator was to be confined. ' At most, the record contained but a misdescription, which the entry in the minutes and the form of" the commitment fully corrected. The law provided for his detention and punishment in the penitentiary, and that was in the end properly secured. That it may not have been- done throughout in the most approved and artistic manner, presents no good reason for his discharge by means of the writ of habeas corpus. The object of the law in this respect was attained witiiout any substantial prejudice to the relator’s rights, and' while that appears to be the case, he has no proper ground of complaint, arising out of the circumstance that in the record the prison he was consigned to was called the county jail instead of the penitentiary. For the offenses he had committed, he could properly be imprisoned nowhere else, and that must have been the place the court designed he should go to when the county jail ivas mentioned, for the process immediately following the sentence expressly consigned him there, and the law required that he should be sent there.! But it is claimed in the relator’s behalf, that the Court of Oyer and Terminer, in the county of Hew York, had no power to try him for the offenses of which he was convicted, and his confinement in the penitentiary was for that reason unlawful. This position is supposed to be maintained by certain provisions contained in chapter 337 of the Laws of 1855. Those relied upon as being attended with that result, are found in the fifth section of the act that provides that “ the Court of Special Sessions of the Peace in and for the city and county of New York, shall have power to hear, determine, and punish according to law, all complaints for misdemeanors, and shall possess exclusive jurisdiction thereof, unless the said Court of Special Sessions shall order any such complaint to be sent to the Court of General Sessions of the Peace, and unless the accused, when arrested and brought before’ the committing magistrate, shall elect to have his case heard and determined by the Court of General Sessions of the Peace in and for the city and county of New York.” But this does not sustain the position taken on behalf of the relator. For, it is not of all misdemeanors that exclusive jurisdiction was given to the Court of Special Sessions, but only of complaints for misdemeanors. It was simply over offenses of this description, for which complaints should be made, that this exclusive jurisdiction was extended. And that included only cases commenced by complaint, a course of criminal proceeding previously well known to the laws of the State. Before this statute was enacted, the laws had provided for making complaints in criminal cases. It was simply a formal application on oath for a warrant against a person supposed to have committed some crime. It was known to the common as well as the statutory law of the State. And when used to designate a criminal proceeding, the term complaint had a different legal signification. It formed the initiatory step in the institution of a criminal prosecution before a magistrate, and that is to be presumed to have been the legislative understanding of it, as it was used in the enactment of the law of 1855. Nothing can be found in the act itself that is inconsistent with that conclusion; and when that is the case, legal terms, made use of in the enactment of laws, are presumed to have been employed in their strict legal sense. That is a well settled rule, which lias long been applied by the courts to the construction of statutes. “When technical words occur in a statute, they are to be taken in a technical sense, unless it appears that they were intended to be applied differently from their ordinary or legal acceptation. So, when legislating upon subjects relating to courts and legal process, we are to consider the legislature as speaking technically, unless, from the statute itself, it appears that they made use of the terms in a more popular sense.” Words and phrases, the meaning of which in a statute has been ascertained, are, when used in a subsequent statute, to be understood in the same sense,

According to this principle of construction, -the complaints mentioned in the act of 1855, must be understood to include only those made as the foundation of an application for a warrant in the mode prescribed by the Bevised Statutes; and it is only of complaints of that nature, that exclusive jurisdiction has been given to courts of Special Sessions, when they may be made for the commission of misdemeanors. This is rendered still more apparent by the provision contained in the same section, giving the accused, when arrested and brought before the committing magistrate, his election to be tried in the Court of General Sessions. This privilege or right is as extended as the complaints mentioned in the preceding portion of the section, including all cases the Special Sessions has exclusive jurisdiction to try, where that election may not be made. And it can in no case be made until the accused has been arrested and taken before a committing magistrate. The provision in substance, is, that the Court of Special Sessions shall have exclusive jurisdiction to try all complaints for misdemeanors, on which the accused shall be arrested and brought before a committing magistrate, when he does not elect to be tried in the Court of General Sessions. Taken together, that is the evident import of the provision made by the section. That it was not designed to divest the Court of Oyer and Terminer of its jurisdiction by means of its grand jury upon indictments found, is further manifested by the provision contained in the fourth section of the same act, declaring that such court may, by an order to be entered in its minutes, send all indictments for any crimes afterward' brought before it, to the General Sessions for trial. This provision was not confined to felonies, or to such offenses as the Special Sessions could not try, but it was extended to all crimes, in any way brought before the Court of Oyer and Terminer. Further evidence of the propriety of restricting the exclusive jurisdiction of the Special Sessions to cases of complaints made before committing magistrates, is supplied by the seventh section of the same act. For, by giving the Court of General Sessions, as it does, the power to remit fines imposed by • the Court of Oyer and Terminer, in cases where imprisonment might be proper, the jurisdiction to try misdemeanors is necessarily assumed to be in that court. It is for such offenses, and for those only, that the Court of Oyer and Terminer can impose fines where imprisonment may also be proper. And they are the cases in which the General Sessions has been authorized to remit the fine, and, in lieu of it, to impose the substitution of ■ imprisonment.

Without impairing the power of the Court of Oyer and Terminer, this statute confers upon the Special Sessions the power to try all misdemeanors for which the offender may be arrested and taken by" warrant before a committing magistrate, provided he does not elect to be tried in the Court of General Sessions. That is the full extent of the power given by means of it to the Court of Special Sessions. It consequently left the statute defining the jurisdiction of the Court of Oyer and Terminer in full force, and that empowered that court to hear and determine all crimes and misdemeanors, triable in the county, which might, be presented by indictment. This general authority was sufficient to include the case" of tire relator, as long as it was not shown, and has not been claimed, that he ever was proceeded against by complaint before any magistrate for either of the offenses of which he has been convicted. It may be assumed, as long as the contrary has not been asserted, that the proceedings in this respect were regularly instituted and prosecuted by indictment in that court; and that being the case, the court was competent to punish the relator by fine and also imprisonment in the penitentiary. It had jurisdiction to try the charges contained in the indictment, and, after the conviction of the relator, to impose punishment upon him for the offenses of which he was found guilty. It was a court of competent jurisdiction for those purposes; and the legality or propriety, of its action cannot be investigated or determined upon the writ of habeas corpus.

The power of the court before which that writ may be returned, is fixed and defined in this State by clear and explicit statutory provisions, where the relator or applicant .may be detained in custody by means of criminal proceedings against him. And by them it has been declared that “ persons committed or detained by virtue of the final judgment or decree of any competent tribunal of civil or criminal jurisdiction, or by virtue of any execution issued upon such judgment or decree,” shall not be entitled to prosecute the writ of habeas corpus And no court or officer shall have power to inquire into the legality or justice” of any process, judgment, decree, or execution, mentioned in that section, by means of that writ, And that it shall be the duty of the court or officer forthwith to remand the applicant for the writ, if it shall appear that he is detained in custody “ by virtue of the final judgment or decree of any competent court of civil or criminal jurisdiction, or of any execution issued upon such judgment or decree.” The only exception made by thé statute, is that in favor of persons' in custody by virtue of civil process. And that has no application to the case made in favor of the relator, for he is in custody under final criminal process, issued by a court of competent jurisdiction. ' . According to these very plain provisions of the statute relating to the writ of habeas corpus, the court had no power on its return to make any examination or investigation into the legality of the relator’s imprisonment, as long as it appeared from the return that it was under the final judgment, and by virtue of process issued to execute it, of a court of competent criminal jurisdiction. That was the end of the inquiry which could be lawfully instituted. And as soon as the fact was ascertained, it was the imperative duty of the court to recommit the relator as it did.

The statute is so guarded upon this subject, that the writ of habeas corpus cannot be procured without, an oath that the relator is not committed or detained by virtue of the final judgment or decree of any competent tribunal of civil or criminal jurisdiction, or of any execution issued upon the same. And that oath was taken by this relator in his application for the writ which was issued. Great care was observed in imposing such restrictions upon the writ as would prevent it from being made use of as a means of reviewing the final judgments of courts of competent civil and criminal jurisdiction, or of the process authorized and issued to carry such judgments into effect. The statute is very clear in this respect, and it has been so construed and applied by the courts. It is the only safe and consistent rule that can be maintained. If it were otherwise, final judgments of all courts could be reviewed and rendered nugatory to every officer having the power to allow a writ of habeas corpus. Another proceeding for that purpose has been provided in both civil and criminal cases, by which errors and excesses of jurisdiction can be examined and corrected, without endangering the stability and security of the final determinations of courts of justice.

It was insisted upon the argument of this cause, that the imprisonment of the relator was unlawful, because the jurisdiction of the court had been exceeded by the punishment which was imposed upon him. But on that subject the decision of the court of Oyel’ and Terminer was adverse to the relator, and even if that decision could not be maintained by authority, it cannot be either reviewed or disregarded by means of the writ of habeas corpus. The court had complete jurisdiction of the subject-matter of the indictment, • and of the person of the relator, which included the power of deciding what was the proper measure of the punishment that should be imposed upon him. If it erred in that, or in any other decision made during the course of the trial, a different mode has been provided for the correction of the error. It cannot be done by a collateral proceeding like the one now before the court, In this respect the case differs from that of Lange. There the jurisdiction of the court had been entirely exhausted by the sentence imposed and complied with before the second was pronounced; while here, the judgment, though divisible, was entire in its nature.

The case of the relator is in the same condition under the counts of the indictment on which it was claimed that he could not be imprisoned. The facts were all before the Court of Oyer and Terminer, and upon them it decided his imprisonment to be lawful. It was the judgment of a competent court upon the subject, and that was conclusive, under the express provisions of the statute, upon the hearing of the writ of habeas corpus.

The writ was property dismissed, and the order made should be affirmed.

Westbbook and Donohue, JJ., concurred.

Westbrook, J.:

At a Court of Oyer and Terminer, held in and for the city and county of New York, on .the 22d day of November, 1873, the relator, William M. Tweed, having been found guilty upon several different counts of a single indictment charging various misdemeanors, received separate sentence upon each. The aggregate term of the imprisonment thereby inflicted in the penitentiary of the city Of New York, was twelve years, and the total of the several fines imposed, amounted to $12,500.

Having been confined in the penitentiary for a year, and paid as a fine $250, the relator sued out a writ of habeas corpus, directed to the warden of the penitentiary in which he was confined,' to inquire into the-legality of the continued imprisonment. The writ of habeas corpus was allowed on the 15th day of December, 1874, by Mr. Justice Lawrence, and was returnable before the Court of Oyer and Terminer of the city and county of New York, on the seventeenth day of the same month. On the last mentioned day, in obedience to the writ, the respondent (the warden of the penitentiary) produced the body of Mr. Tweed, and by his return claimed to hold him under the judgment and sentence of the Court of Oyer and Terminer of the city and county of New York, hereinbefore mentioned, rendered and pronounced on the 22d day of November, 1873.

The answer of the relator to the return of the respondent, substantially alleges: 1st. That .the Court of Oyer and Terminer of the city and county of New York had no jurisdiction or power to try the alleged misdemeanors, for the commission of which he was held. 2d. That the jury which rendered the verdict upon which the sentence was pronounced, was not a lawful one. 3d. That the court had no power to punish more than a single misdemeanor, and that, consequently, all fines in excess of a single one of $250, and all imprisonment beyond a single year, were illegal and void. And 4th. That the penalty for the offense charged in the indictment, was a fine of $250 only.

The Court of Oyer and Terminer before which ,the habeas corpus was heard, after a full hearing, discharged the writ and remanded the prisoner. The proceedings having been brought into this court by certiorari, the questions raised in the court below, and there determined against the relator, are presented for review and determination.

The relator, as has been previously mentioned, is detained by virtue of the final sentence and judgment of a Court of Oyer and Terminer, pronounced upon a verdict of a jury, rendered upon the trial in that court of an indictment charging various misdemeanors. Upon the trial that court held, that it was proper and legal to unite several misdemeanors in one indictment, and to try and convict the accused upon each; and that, as several misdemeanors were in fact joined and charged in the indictment, upon which a separate verdict was rendered, judgment could be and was pronounced against him for each crime of which he was found guilty.

As the attempt to have Mr. Tweed released was made by habeas corpus, this preliminary question meets us: What power had the court, or officer before which such writ was returnable, by virtue thereof, in the premises ? The office of the writ, and the duties of the officer or court before which it is returnable, are, in this State, very clearly defined by statute; and the limitations upon the power conferred thereby, are stated with great precision. A reference to some of the provisions of our habeas corpus act, bearing upon the question before us, will show the difficulties which the relator has to encounter in presenting to the court the points upon which he claims he is entitled to be discharged.

First: By section 22, of that act, among the persons who are therein declared to be not “ entitled to prosecute such writ,” are those who are committed or detained by virtue of the final judgment or decree of any competent tribunal of civil or criminal jurisdiction.”

Second : By section 25, “ the petition must state in substance,” that the party applying for the writ “ is not committed or detained by virtue of any. process, j udgment, decree or execution, specified in the preceding twenty-second section.”

Third: By section 40, it is declared to “ be the duty of such court or officer,” before which the writ is returnable, “ forthwith to remand such party, if it shall appear that he is detained in custody, either,” (enumerating several) “by virtue of the final judgment or decreé of any competent court of civil or criminal jurisdiction, or of any execution issued upon such judgment or decree.”

Fourth : By section 41, where the party imprisoned is detained “by virtue of civil process from any court legally constituted, or issued by any officer in the course of judicial proceedings before him, authorized by law,” he may be discharged, provided (there are several grounds stated), “ the jurisdiction of such court or officer has been exceeded, either as to matter, place, sum or person.”

Fifth: By section 42, it is declared: “ But no court or officer, on the return of any habeas corpus or certiorari, issued under this article, shall have power to inquire into the legality or justice of any process, judgment, decree or execution, specified in the preceding twenty-second section ; nor into the justice or propriety of any commitment for a contempt made by any court, officer or body, according to law, and charged in said commitment, as hereinbefore provided.”

It is claimed on the part of the relator, that the expression contained in the twenty-second section, “any competent tribunal,” justifies the presentation of all the questions now submitted. It is argued that, whenever the “final judgment or decree” was not such an one as the tribunal, in the opinion of the court or officer granting the writ, pronouncing or rendering it, was “competent” to pronounce or render, then the person detained in custody should, be discharged. In giving to the statute this construction, the consequence cannot be overlooked. The twenty-third section of the habeas corpus act, confers the power to issue the writ not only upon the Supreme Court or any of its judges, but also upon “ any officer who may be authorized to perform the duties of a justice of the Supreme Court at chambers, being or residing within the county where such prisoner is detained.” Will it be argued that our law makers intended that the judgments of the Courts of Oyer and Terminer, which constitute the highest grade of courts possessing original criminal jurisdiction, should be summarily reviewed and practically reversed by any officer who, whilst he is in the judicial system of inferior rank to the judge who presides at such Oyer and Terminer, is yet empowered to issue this writ 8 If this question be answered in the affirmative, such answer involves a want of symmetry in our judicial system, which as a rule provides for appeals only from the inferior to the superior tribunal. Apart from the incongruity which the practice of a local officer sending a prisoner back to the Oyer and Terminer for a resentence, would involve, another consequence, even more serious, would ensue. The officer allowing the writ has no such power; and in every case where in his judgment the power of the court had been exceeded, he would be compelled to open the prison doors, and direct the criminal to go free and unpunished. Did our legislature intend this ? It certainly did, if the position of the relator is sound.

Again: If the construction given to the statutes by the relator is sound, what necessity was there to make special provision, as has been done by section 41, allowing the court or officer granting the writ, in all cases where the prisoner is detained “ by virtue of civil process from any court legally constituted, or issued by any officer in the course of judicial proceedings before him,” to discharge him “where the jurisdiction of such court or officer has been exceeded, either as to matter, place, sum or person ? ” If in every case, when the court has exceeded its power in the extent of the judgment pronounced, such judgment could be reviewed upon habeas corpus, words have been wasted to confer just that power in “ civil ” cases only.

Lastly: If the words “ competent tribunal ” have the force attributed to them, what becomes of the forbidding incorporated in the forty-second section ? By that, “ no court or officer, on the return of any habeas corpus or certiorari, issued under this article, shall have power to inquire into the legality or justice of any process, judgment, decree or execution, specified in the preceding twenty-second section; ” and this twenty-second section is the identical one in which the words “competent tribunal” occur. Reading them together, as they must be to arrive at their intention, they read for the government of this case thus: No court or officer, on the return of any habeas corpus or ce7'Uora^i, issued under this article, shall have power to inquire into the legality or justice of any process, judgment or decree of any competent tribunal of civil or criminal jurisdiction. The very question before us is the “ legality ” of the judgment of the Court of Oyer and Terminer of the city of New York. The want of power to determine this is, apparently at least, expressed in such simple, striking and fur reaching words, that it becomes us to hesitate in the acceptance of a construction given to other words not necessary to their meaning, which brings them in plain and direct collision. The consequences, then, of the construction claimed by the counsel of the relator, placing the practical power of reversing the judgments of a superior court of original criminal jurisdiction in the hands of inferior judicial officers; its making a whole section — that giving the power to decide whether, in the issue of “ civil process,” a court or officer has exceeded its jurisdiction — unnecessary, and its direct collision with another, cause us to give the words “ competent tribunal ” a different meaning from that claimed by the relator.

Judicial construction should harmonize all the provisions of our statutes relating to a single subject. No interpretation of particular words or phrases can possibly be allowed, which renders other portions of the same act unnecessary, and conflicts with other plain commands. In this case, there is no difficulty in thus harmonizing them. If we construe these words, “ competent tribunal,” to mean a tribunal having jurisdiction of the subject-matter and of the person, the whole act is harmonious. Such a tribunal is a “ competent ” one —■ competent to try the question and party before it. The decisions of such a body, according to the whole theory of our laws, are to be reviewed by a superior one, and not summarily disposed of by an inferior officer. If it errs in the extent of the judgment which it renders, the party injured is not remediless, but his alleged grievance must be deliberately examined upon appeal by a higher court, and not summarily passed upon by a local magistrate clothed with certain limited judicial power. It was, we submit, this plain and natural construction just given, which induced the framers of the habeas corpus act to insert the clause giving the power, when the detention was upon “ civil process,” to inquire into the excess of .the jurisdiction assumed, and without which a party thus confined would also have been remediless.

The question we have discussed has not been considered so directly in this State as the same is now presented, and yet in several cases the language employed indicates a concurrence in the view we have taken. The People v. Cassels involved the validity of a commitment of a witness for a contempt in refusing to answer a question upon an examination before a justice of the peace. A reference to the full text of the statutes, before cited in part, will show that commitments for contempts, and upon final judgment, are placed upon the same footing as to their capability of being-reviewed upon habeas corpus. In that case, Judge Bbonson says : “A contempt was specially and plainly charged in the commitment, and it was the duty of the judge forthwith to remand the prisoner. (2 R. S., 567, § 40.) The statute expressly forbids an inquiry into the justice or propriety of the commitment in such a case. (§ 42.) If there had been no such statute, it is clear upon principle, that the judgment or decision of any 'court or officer of competent jurisdiction cannot be reviewed on habeas corpus. If there has been error, the remedy is by certiorari or writ of error.”

.In the People v. Spalding a Supreme Court commissioner had, upon habeas corpus, discharged a person committed for a contempt in not paying a fine imposed by the Court of Chancery. It was held both by the ■ chancellor and the Court of Errors (Chief Justice Nelson delivering the opinion of the latter court), that the commissioner was utterly without jurisdiction in the premises, as the statutes prohibited him from inquiring “into the justice or propriety of the commitment.”

In the very recent case of The People v. Fancher, the writer of this opinion had occasion to examine this same question, and nothing has transpired to shake his confidence in the soundness of the views therein expressed. Every consideration of public policy, and the express language of our statutes, require us to hold that the judgment of*a competent court—competent by reason of jts having jurisdiction of the subject-matter and of the party — cannot be practically reversed and annulled by any officer empowered to grant the writ of habeas corpus. Plain words should not be refined away by legal subtlety, and when our written statute law emphatically declares, that “no court or officer, on the return of any habeas corpus or certiorari, issued under this article, shall have power to inquire into the legality or justice of any * * * judgment” “of any competent tribunal of civil or criminal jurisdiction,” it is but our simple duty to obey its mandate, and not permit a power to be assumed, which our statutes declare the officer or tribunal granting the writ does not possess.

The application of the conclusion we have reached, will now be made to the several points raised in behalf of the relator, which such conclusion affects; and they relate, first, to the several convictions and sentences upon a single indictment; second, to the lawfulness of the jury; and, third, to the legality of a sentence to imprisonment upon several of the counts in the indictment contained. Each of these will be examined in the order mentioned.

Fimst. The alleged illegality of the several convictions and several sentences upon a single indictment. The jurisdiction of the court over the crimes and the accused being conceded, what does this point present more than the “ legality ” of the judgment which has been pronounced % That it does involve anything more will scarcely be argued ; and yet this is the very thing which the statute declares the court or officer upon the return to the writ is powerless to touch. The language of such forbidding is simple, direct and sweeping.' Our argument thus far has been useless, if we have failed to prove that the excessiveness of a judgment (which is all that even counsel claim this point involves), in a criminal case, cannot be inquired into upon this proceeding. Ample power so to do is expressly conferred when a party is detained upon cimil process, but its exercise in a criminal one, where the court which pronounced the judgment had power to try the offense and render a. judgment, is forbidden by an express declaration that the court or officer shall have no “ power to inquire into the legality or justice ” thereof. The mere repetition of the language of the act forecloses discussion. But does this case really present a question of excess of jurisdiction ? It is not denied that Mr. Tweed has been tried and convicted of several misdemeanors, and that several judgments have been pronounced thereon. Mor is it pretended that the aggregate of the several punishments is in excess of what the court was authorized to inflict. The point then necessarily is, that the joinder of the several offenses in a single indictment, their investigation upon a single trial, and the separate convictions and judgments thereon, were illegal. This proposition admits th'e jurisdiction, but questions the manner of its exercise. While the power to do the several acts is conceded, the mode of doing them is denied. The proper step to acquire jurisdiction having been taken by the presentation of an indictment, and the judgment upon the crimes and the offender being no greater than the law allowed, what, are the intervening steps but simply questions of practice, which, while they may be pronounced erroneous, in a proper proceeding to review them, cannot, and do not render the judgments void ? '

The prosecution of Mr. Tweed .was begun by an indictment found by a grand jury. It accused the relator of sundry misdemeanors, and presented them by separate counts in a single accusation. Assuming that this was a misjoinder of offenses, did the court thereby lose its jurisdiction of the crimes and the party charged therewith ? Suppose, in a civil action, the defendant is brought before the court by proper process, and when the court has thus acquired jurisdiction, he is required to answer a complaint which improperly unites various causes of action, and after issue thus joined the cause proceeds to trial and judgment, is such judgment void, provided it was not in excess of the power of the court over all the causes of action separately This will hardly be pretended, and yet it is the identical question presented. The court before which Mr. Tweed was tried, was a .competent one for that purpose; there was no lack of jurisdiction in regard to the person or the accusations; but, because the power was exerted by compelling him to defend himself against all the charges upon a single trial, by the joinder of the offenses in a single complaint, called an indictment, it is urged that the whole proceeding is void. The soundness of this proposition can only be established by showing that the grouping of offenses in a single indictment is so illegal as to make null the preliminary proceeding, thus rendering all subsequent steps thereunder void. To do this, it must be demonstrated that every indictment, in order to give the court jurisdiction over the offender and the offenses, must accuse of a single, and only a single crime; and when this is proved, and not before, will it follow that in case this practice is departed from, the court acquires no power to proceed, and its action is a legal nothing. When this has been done, the illegality of the major part of our criminal convictions has been exhibited, and the illegal and unauthorized imprisonment and judicial murder of many individuals, has been conclusively shown. This is no overstatement, for the practice of all courts, from time immemorial, has been to unite offenses m words at least, if not so actually. Scarcely an indictment is drawn or presented, which does not contain several counts, each one of which, in theory at least, presents a different accusation. Several offenses, being thus charged, all convictions thereunder are illegal and void, if the arguments of the relator are sound.

The reasoning which starts with the assumption that a court obtains no jurisdiction over several offenses and the offender when they are charged in a single indictment, certainly overlooks all precedents and practice. The right to frame an indictment, with different counts to meet the proof, is based upon a directly opposite theory. Every indictment which contains more than a single count, assumes to charge a separate and different offense in each. A demurrer, or a motion in arrest of judgment, in every such case would necessarily prevail, if different offenses could not be joined; for, upon the face of the bill, there are several offenses charged. There is no necessity, however, for abstract reasoning to show that the joinder of offenses in a" single presentation does not deprive the court of jurisdiction. The authorities are numerous to show that this practice, so far from rendering the whole proceeding void, is not even irregular, but, on the contrary, it is the well settled course of procedure of criminal courts.

Burns’ Justice thus states the rule: “If there be one offender and several offenses committed by him, as burglary and larceny, they may be contained^in one indictment.” Hawkins, in his Pleas ' of the Crown, ' in the chapter which treats of indictments, in stating the requisites thereof, says: Fifthly, that regularly every indictment must either charge a man witli some particular offense, or else with several of such offenses, particularly and certainly expressed, and not with being an offender in general.” Hale’s Pleas of the Crown thus states the law as to the joinder of offenses : If there be one offender and several capital offenses committed by him, they may be all contained in one indictment, as burglary and larceny; larcenies committed of several things, though at several times, and from several persons, may be joined in one indictment.” In East’s Pleas of the Crown the same rule is recognized, and the case of Thompson is cited. In that case, “upon a general verdict of guilty, it was objected that there were two several capital charges in the' same indictment, which it was said tended to deprive the prisoner of so many challenges as he would be entitled to if the indictments were distinct, namely, twenty upon each. Another objection was, that it would tend to perplex the prisoner in his defense. But seven judges (being all who were present at the conference) held the indictment good.” Chitty’s Criminal Law says: “ In cases of felony, no more than one distinct offense, or criminal accusation, at o.ie time should regularly be charged upon the prisoner in one indictment, because if that should be shown to the court, before filed, they will quash the indictment, lest it should confound the prisoner in his defense, or prejudice him in his challenge to the jury; for he might object to a juryman trying one of the charges, though he might have no reason so to do in the other, and if they do not discover it until afterward, they may compel the prosecutor to elect on which charge he will proceed. But this is only matter of prudence and discretion which it rests with the judges to exercise. For, in point of law, there is no objection to the insertion of several distinct felonies of the same degree, though committed at different times, in the same indictment against the same offender; and it is no ground of either demurrer or arrest of judgment. * * * In the case of misdemeanors, the joinder of several offenses will not in general vitiate in any stage of the prosecution. For in offenses inferior to felony, the practice of quashing the indictment, or calling upon the prosecution to elect on which charge he will proceed, does not exist. But on the contrary, it is the constant practice to receive evidence of several libels and assaults upon the same indictment. It was indeed formerly held, that assaults on more than one individual could not be joined in the same proceeding, but this is now exploded; for though two persons cannot join in a civil action, the reason is that the damages are several, which cannot apply to criminal proceedings where no compensation is given to the prosecutor, and public security is the object to be obtained.” And again the same work declares: “So when he is charged with several offenses at the same time of-the same kind he may be sentenced to several terms of imprisonment, one after the conclusion of the other.” Archbold’s Criminal Pleadings contains the same doctrine: “ If different felonies or misdemeanors be stated in several counts of an indictment, no objection can be made to the indictment on that account in point of law. In cases of felony, indeed, the judge in his discretion may require the counsel for the prosecution to select one of the felonies and confine himself to that. This is what is technically termed putting the prosecutor to his election. c But this practice has never been extended to misdemeanors.”

It cannot be necessary to refer in detail to the numerous cases decided in England, sustaining the rule as laid down by thp eminent and standard authors to whom we have referred. A reference to the works we have cited will show that these- cases are very numerous, but the universally acknowledged authority of the writers quoted, renders that labor unnecessary. We content ourselves with the citation of a single very recent and famous one, known as that of the Tichborne Claimant.” The trial was before the Court of Queen’s Bench, and the judges composing the court were the Lord Chief Justice of England, the Hon. Justice Mellor, and the Hon. Justice Lush. “ The indictment upon which the proceedings were founded was filed Easter Term, 1872, against Thomas Castro, alias Orton, alias Tichborne. First count of indictment charged defendant with perjury, committed in,^evidence given by him on the recent trial of Tichborne v. Lushington. Second count charged defendant with perjury in an affidavit sworn by him in the chancery suit, Tichborne v. Tichborne. Defendant pleaded Not Guilty.” The jury † found a separate verdict of guilty on each count, and a general verdict of guilty on both counts. The sentence and judgment of the court was pronounced by Mr. Justice Mellor, and was couched in the following language: “ The sentence of the court, which I now pronounce, is, that for the perjury alleged in the first count of this indictment upon which you have been convicted, you be kept in penal servitude for the term of seven years, and that for the perjury alleged in the second count of this indictment, of which you have also been convicted, you be kept in penal servitude for the further term of seven years, to commence immediately upon the expiration of the term of penal servitude assigned to you in respect of your conviction upon the first count of this indictment; and that is the sentence of the court.”

It may not be improper to add, that so well settled does the law of England seem to be in that regard, that no question was made as to the regularity of the sentence, and not a single objection interposed, or exception taken thereto. And it will further be observed, that the indictment upon which the prisoner was convicted, was of two separate and distinct offenses: the one of perjury in giving, evidence upon a trial, and the other of perjury in making an affidavit in a separate and distinct action. It- furnishes, therefore, an answer to the position of the counsel for the relator, that there was no case upholding the joinder of disconnected offenses, and the awarding of cumulative sentences thereon.

The law of Massachusetts, Connecticut and Pennsylvania is in accordance with that of England, as the following cases will show: In Carlton v. The Commonwealth, the Supreme Court of Massachusetts decided: “ Two or more distinct offenses may be included in one indictment, in several counts, where the offenses are of the same general nature, and where the mode of trial and the nature of the punishment are also the same. When a defendant is found guilty, generally, on an indictment which charges him with several distinct offenses, it is not necessary that separate sentences should be awarded. A single sentence is legal, if it do not exceed the sum of the several sentences which might be awarded.” This case was followed in Booth v. The Commonwealth; in Josslyn v. The Commonwealth; in Crowley v. The Commonwealth; in Kite v. The Commonwealth; in Commonwealth v. Hills; and in Commonwealth v. Carey.

The same rule prevails in Connecticut. It was held in State v. Tuller : “It is essential to the administration of justice, that several distinct offenses should be joined in cases of misdemeanor ; and in some cases of felony, that the same offense should be laid differently in different counts; and the rule precludes the right of the prisoner to insist upon an election of counts, or that the jury should be required to find specially on each count. Where there are several counts in the information, and a general verdict is rendered, the jury will be presumed to have found the prisoner guilty upon all the counts; and the court will impose a sentence, in accordance with the facts proven upon the trial.” In the very recent case (January 9,1872) of Commonwealth v. Birdsall, the Supreme Court of Pennsylvania have examined the question and reaffirmed its correctness.

Many- other of the States have adopted tlie same rule. The ordinary limits of an opinion do not permit us to cite in detail the numerous cases decided in this country. Very many of them are referred to in the United States Digest of Criminal Law, and in the American notes to Hale, Chitty and Archbold, before referred to. With a single citation therefore, from a standard American treatise upon the criminal law, we will then refer to some of the Hew York cases. In discussing this question, that author says: “ The law imposes certain penalties for assault and battery, which penalties are designed to cover the assault- as well as the battery. To sentence the defendant for the penalties for an assault as averred in the first count, and then again for an assault and battery as averred in the second count, would expose him to a double punishment for the same offense. The only legitimate course, when the several counts are simply successive stages of one offense, is, in accordance with the view already given, to impose the sentence on the count containing the highest offense, dropping the rest. This, to repeat once more the distinction so important to keep in mind in cases of this class, is on the supposition that the several counts are simply for separate stages or modifications of the same offense. Here, it stands to reason there can be no cumulative punishments; yet it equally stands to reason, that where two distinct offenses are coupled in the same indictment, and there is a general verdict of guilty, then a cumulative punishment can be imposed, or, according to the Pennsylvania practice, which is more exact, a distinct punishment on each count.”

Much stress was, however, made upon the argument by the counsel of the relator, that whatever might be the common law of England and other States upon this question, the common law of Hew York was different, and did not allow the practice adopted in this case. It is scarcely necessary, perhaps, in answer to the objection which assumes the wide difference between the common law of England and of Hew York, to cite section 17, of article 1, of our Constitution. Whatever result in answer to the assumed antagonism of the two could be evolved by reasoning thereon, is rendered unnecessary by express adjudication of our highest courts. Kane v. The People was a case in our Court of Errors, then our highest appellate tribunal. The plaintiff in error in that case was convicted upon an indictment containing two counts, and averring, in words at least, two distinct offenses. His counsel (the late Judge Paige) made, as his fourth point, the one we are now discussing in these words: “ There is a misjoinder of offenses in the indictment; there being two counts against the defendants below, as directors of different companies.”

The chancellor, whose opinion was unanimously concurred in, in answer to this position says : “ The fourth objection is for a misjoinder of counts in the indictment. If there ever was anything in this objection, it should have been addressed to the discretion of the court below before conviction. In cases of felony, when two or more distinct and separate offenses are contained in the same indictment, the court in its discretion may quash the indictment, or compel the prosecutor to elect upon which charge he will proceed ; but in point of law, it is no objection that two or more offenses of the same nature, and upon which the same or a similar judgment may be given, are contained in different counts of the same indictment. It therefore forms no ground of a motion in" arrest of judgment; neither can it be objected by way of demurrer, or on a writ of error. (Rex v. Young, 2 Peake’s N. P. Rep., 228 n.) It is every day’s practice to charge a felony in different ways in several .counts, for the purpose of meeting the evidence as it may come out upon the trial. Each of the counts on the face of' the indictment purports to be for a distinct and separate offense, and the jury very frequently find a general verdict on all the counts, although only one offense is proved ; but no one ever supposed that formed a ground for arresting the judgment. If the different counts are inserted in good faith, for the purpose of meeting a single charge, the court will not even compel the prosecutor to elect; and in the case of mere misdemeanors, which are only punishable by fine or imprisonment, the prosecutor is permitted to join and fry several distinct offenses in the same indictment.”

In The People v. Costello, in pronouncing the judgment of the Supreme Court, Judge Beardsley says: “ Distinct offenses were charged in the different counts of this indictment, and the evidence went to show that two crimes had been committed: 1st. That an instrument had been used at one time for the purpose charged. 2d. That on other occasions, and at other times, drugs had been resorted to for the same purpose. The offenses charged were misdemeanors, and it is well settled law, that several misdemeanors may be joined in the same indictment, and a conviction for all may take place at the same trial. The prosecutor is not bound, in such cases, to elect a single offense from amongst the number charged, and proceed for that alone, but may ask a conviction for as many as are proved. (Roscoe’s Cr. Ev., 216; Rex v. Jones, 2 Camp., 132; Kane v. The People, 8 Wend., 211; 1 Chit. Cr. Law, 249, 254; Rex v. Levy, 2 Stark., 458; Commonwealth v. Gillespie, 7 Serg. & Rawle, 476.) ”

With these two cases from our own reports, which no subsequent one that we have seen questions, we cannot possibly hold that the presentation of the several charges against the relator, in one indictment, was so irregular and informal as to render the whole proceedings void, and the conviction a nullity. They settle the common law and practice of ISTew York to be in accordance with that of England. Possibly, a case in ISTew Hampshire, or Indiana, or Kentucky, may enunciate a different doctrine, but the law of ISTew York is in harmony with that of England, Massachusetts, Connecticut, Pennsylvania and other States. The State v. Lincoln, certainly does not decide that the court loses jurisdiction when several offenses are charged in one indictment, but simply holds that, in such a case, “ the judge may, at any stage of the proceedings, put the prosecutor to his election, or quash the indictment.”

Neither is the case of James v. Ward in point to sustain the position of the relator’s counsel, because, as will be seen by reference to it, the opinion is based upon a provision of the Kentucky statutes, which requires the jury to fix the punishment. If, however, these cases were directly applicable, in view of the contrary practice which has been firmly settled in England for ages, adopted in many other of our States, and sustained by two direct decisions in this, we should hold that an immense preponderance of authority existed in favor of the course pursued in this cause; and that certainly upon this proceeding at least — that of habeas corpus, which only presents jurisdictional questions — the relator is without remedy, for the reason which we have considered. Whether or not a writ of error or. any proceeding may be taken to review the discretion exercised by the judge upon the trial, is not decided. That question is not before us, and upon it no opinion is expressed.

Second. But it is also claimed that the defendant was tried by an incompetent jury. It is argued that because chapter 475, of the Laws of 1872, provided that a previous formation or expression of an opinion or impression in reference to the circumstances upon which any criminal action at law is based,” etc., shall not disqualify a person summoned as a juror, provided he shall declare on oath that he verily believes that he can render an impartial verdict according to the evidence submitted to the jury on such trial, and that such previously formed opinion or impression will not bias or influence his verdict, and provided the court shall be satisfied that the person so proposed as a juror does not entertain such a present opinion as would influence his verdict as a juror; and, also, because chapter 427, of the Laws of 1873, provided for the trial of all challenges by the court, that the jury chosen in conformity with these laws was illegal and their verdict void.

■ We do not see how it is possible to present this question upon habeas corpus. It enters so largely into the merits of the trial, that its review upon this proceeding is impossible. If there is any virtue in the point, then, when any erroneous decisions are made as to the selection of a juror, or whenever any officer authorized to grant the writ thinks such an error has been committed, he can open the prison doors and let the criminal free. Such a proposition shocks the moral sense, and its statement is its sure condemnation.

The point, however, as to the legality of the jury, is without force. The mode and manner of the selection of a jury is under legislative control, and a change of law, in that respect, is not obnoxious to any constitutional objection,

It is also claimed that the judge holding the Oyer and Terminer before which Mr. Tweed was convicted, did not allow him the number of peremptory challenges to which he was entitled; that he should have had five for each “ offense ” charged. How is it possible to present this question now % If it can be argued that errors were made in the selection of jurors, and therefore there was no jury, so, too, it can then be argued, that the evidence admitted by the court was illegal, and therefore the prisoner was convicted upon none. Having reached this conclusion, counsel for a prisoner have only to satisfy some officer empowered to grant this writ, that such an error has been committed, and the proceedings of grave trials before our highest courts are reviewed by local officers, and judgments reversed at their pleasure. Will learned counsel gravely argue in favor of such" a proposition ?

Third. It is further urged that it was not competent for the court to sentence the defendant to imprisonment upon the first, second and third counts in each set of counts. The only penalty to which he could have been subjected was a penalty of $250. The reason given to sustain the point is, that Mr. Tweed was not liable to conviction and punishment for misdemeanors, under 2 Revised Statutes, 696, section 38, because a special provision has been made for the punishment of the delinquency charged.” This reason is founded, as claitned, upon 2 Eevised Statutes, 696, section 38, and 1 Eevised Statutes, 368, section 16. The former reads thus: “ Where any duty is or shall be enjoined by law, upon any public officer, or upon any person holding any public trust or employment, every willful neglect to perform such duty, where no special provision shall have been made for the punishment of such delinquency, shall be a misdemeanor, punishable as herein prescribed.” The latter is as follows : “If any supervisor shall refuse or neglect to perform any of the duties which are or shall be required of him by law, as a member of the board of supervisors, he shall, for every such offense, forfeit the sum of $250.”

To this point there are several answers. 1st. A court of com»petent jurisdiction has decided otherwise, and its final judgment cannot be reviewed upon this proceeding. 2nd. The fines which it concedes could be imposed, are not paid, and the detention for such non-payment would be proper. 3d. The point assumes a fact which is not correct. Ho special provision by 1 Eevised Statutes 368, section 16, is made for the punishment by criminal prosecution of “ any supervisor who shall refuse or neglect to perform ” his duties or any of them. That section prescribes a penalty to be recovered in a civil action for a simple refusal or neglect to perform a duty. The provision in 2 Eevised Statutes, 696, section 38, makes the willful neglect of “ any public officer ” a crime — a misdemeanor. The punishment of that crime is not provided for by the civil action to recover the penalty given by the previous statute for a simple refusal or a neglect of duty. The omission to perform the duty which makes the act criminal, must be willful, whilst that element — willfullness — is absent from the enactment which creates the penalty. To make the point effectual, the relator must show that some “punishment” for the misdemeanors of which he is convicted other than those inflicted, is “ prescribed.” The section before quoted certainly does not profess to do this, and is entirely inapplicable.

We have now examined the questions which the proceeding involves, affecting and concerning the legality of the convictions and the judgments pronounced. We are clearly of opinion, that no error has been committed in either of these respects, which could have justified the discharge of Mr. Tweed upon the return to the writ issued to inquire into the legality of his detention. The remaining two questions, that of the place of imprisonment, and the jurisdiction of the Court of Oyer ahd Terminer in the city of Mew York over misdemeanors, have been fully examined by Mr. Justice Daniels, and in his result and reasoning I fully concur..

In the decision which we are to give, we are to answer simply legal questions. Mo discretion to abate or lighten punishment is confided to us. Mor is there any opportunity upon this proceeding, to review any alleged errors upon the trial, or the improper exercise of discretion by the court before which the conviction took place. We certainly do hot impute any error or abuse of discretion, but simply desire to say, that, as to the existence of any such, no opinion is expressed. In our judgment, the Oyer and Terminer, in discharging the writ of habeas corpxis and remanding the prisoner, committed no error, and that order must be affirmed.

Daniels and Donohue, JJ., concurred.

Proceedings and determination of the Court of Oyer and Terminer affirmed.

      3 R. S. (5th ed.), 1032, § 13.

      Laws of 1814, 208, 209, §§ 1, 3.

       3 R. S. (5th ed.), 993, §§ 1, 2; Barbour’s Crim. Law (2d ed.), 514.

       Sedgwick on Statutory and Const. Law, 321-223.

       Potter’s Dwarris on Statutes, 274, and note; People v. Fleming, 3 Com., 484. 489; Clark v. City of Utica, 18 Barb., 451.

       3 R. S. (5th ed.), 297, § 14.

       3 R. S. (5th ed.); 883, § 36.

       id., 888, §57.

         Id., 887, § 55.

       Id., 884, § 39.

       Id., 887, § 56.

       People v. Cavanagh, 2 Park. Crim. Rep., 650; People v. Cassels, 5 Hill, 164; People v. Fancher, 9 Sup. Ct. (2 Hun), 226.

       Grignon v. Astor, 2 How. (U. S.), 319; Elliott v. Lessee of Peirsol, 1 Peters, 328, 340.

         18 Wallace, 163.

      2 Edmonds’ Statutes, 584.

      2 Edmonds, 585.

       2 Edmonds, 588.

       2 Edmonds, 588.

       2 Edmonds, 589.

       2 Edmonds, 584.

       3 Edmonds, 588.

       5 Hill, 164.

       Page 167.

         10 Paige, 384; S. C., 7 Hill, 801.

       4 N. Y. Sup. Court (Thompson & Cook), 467; 9 Sup. Court Reports of N. Y. (2 Hun), 336.

      Vol. 2, page 502.

       Vol. 2, page 322.

         Vol. 2, page 515.

       Vol. 2, page 173.

       Vol. 1, pp. 252, 253, 254.

       Vol. 1, page 718.

       Waterman’s Edition of 1853, vol. 1, p. 95.

      See the Tichborne trial; the summing up by the Lord Chief Justice (unabridged edition, London: Ward, Lock & Tyler),

       See page 285.

       Pages 286, 287.

       5 Metcalf, 532.

      5 Metcalf, 535.

       6 Metcalf, 236.

         11 Metcalf, 575.

       11 Metcalf, 581.

       10 Cushing, 580.

       103 Mass., 214.

       34 Conn., 281.

       69 Penn., 482.

       Pp. 335, 336.

       Wharton’s.

       7th ed., Vol. 3, § 3397.

       8 Wend., 203.

       Page 207.

       Pp. 210, 211.

       Pp. 89, 90.

       1 Denio, 88.

      49 N. H., 464.

       2 Metc. (Ky.), 271.

       Walter v. The People, 32 N. Y., 147.

       2 Edmonds’ Statutes, 719, § 38.

       1 Edmonds’ Statutes, 341, § 16.

       Caswell v. Allen, 7 Johnson, 63; Morris v. The People, 3 Denio, 381.


source: Caselaw Access Project

author: Brady, J. :

license: Public Domain

text:
    AARON HARRIS, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Mebropolitan Hire Marshal— investigation by, as to origin of fires— Ghap. 563, Laws of 1868 — Same felony may be cha/rged in different counts of an indictment — Yaiimiee— when not fatal.

    Chapter 563, Laws of 1868, creating the office of metropolitan fire marshal, giving him power to' administer oaths, and providing that false swearing in any matter or proceeding before him should he deemed perjury, and be punishable as such, has not been repealed by the subsequent statutes in relation to such officer.
    The plaintiff in error was convicted of perjury, committed by him in the course of his examination before the fire marshal of the city of New York. The indictment contained two counts, one alleging perjury in the oral testimony given before the fire marshal, and the other alleging perjury in swearing to an affidavit before that officer, containing, in substance, the same allegations. Held, that the indictment was good. Though different felonies cannot be charged in different counts, yet the same felony may be charged in different ways in different counts, to meet the facts of the case.
    The second count of the indictment charged the plaintiff in error with having sworn falsely in his affidavit, “ of and concerning several necessary and material matters contained therein, in substance and to the effect following, that is to say,” etc. The affidavit set out in the indictment stated that there were on the premises 60,000 cigars, while the affidavit produced upon the trial stated that there were 65,000 thereon. Held, that the variance was not fatal; that where an oath is set out *• in substance and to the effect following,” a literal copy is not required.

      People v. Warner (5 Wend., 371) followed.

      Upon an inquiry by the fire marshal into the origin and cause oí a fire, where suspicion exists against the witness, who was the owner of the property, such owner’s assertion as to the value of the property contained in the premises at the time, is a proper subject of investigation.
    Writ of error to the Court of General Sessions of the city and county of Hew York, to review the conviction of the plaintiff in error of perjury.

      Benjamin K. Phelps, for the defendants in error.

      Ira Shafer, for the plaintiff in error.
    The verdict is repugnant, inconsistent and void. The jury say that he is not guilty of the offense described in the first count, but is guilty of the one described in the second, and both counts describe in the same language, the same identical offense. (Barb. Cr. Law, 367; 1 Chit. Cr. Law, 690; 2 Hawk., 47, § 8; O'Connell v. The Queen, 11 Clark & Fin., 155; Hayworth v. State, 14 Ind., 590; State v. McCue, 39 Mo., 112; People v. Ah Ye, 31 Cal., 951; Guenther v. The People, 24 N. Y., 100; State v. Lorumbo, Harper [Va.], 183; Allen v. Aldrich, 9 Foster [N. H.], 163 ; Jewett v. Davis, 6 N. H., 518; Holman v. Kingsbury, 9 id., 109; Coffin v. Jones, 11 Rich., 95 ; Brunswick v. McKean, 4 Greenl., 508.)
   Brady, J. :

The plaintiff in error was convicted of perjury, at the December . term of the General Sessions, 1873, and sentenced to ten years’ imprisonment in the State prison. The perjury alleged in the indictment, was committed on the 13th day of September, 1873, before George H. Sheldon, fire marshal of the city of Hew York, who was investigating the cause, origin and circumstances of a fire which occurred on the 5th of September, 1873, at Ho. 10 Hester street, in a building occupied by the plaintiff in error and his copartner, as a tobacco manufactory. This investigation was entered upon by the fire marshal, in pursuance of the duty and authority imposed upon him by chapter 563, of the Laws of 1868, and the several acts supplementary thereto. The plaintiff in error swore, on this examination, that, at the time of the fire, he was not in the city of Hew York, but was in the city of Troy. He also swore, that, at the time of the fire, there was in the building in which the fire occurred, a stock belonging to him and his copartner, consisting of 65,000 cigars, 185,000 cigarettes, 400 pounds of Havana tobacco, of the value of one dollar and fifty cents per pound, 645 pounds of Virginia tobacco, of the value of sixty-five cents per pound; and that he and his partner sustained a loss by the fire, of between five and six thousand dollars.

The indictment contains two counts, one alleging perjury in the oral testimony given before the fire marshal, and the other alleging perjury in swearing to an affidavit before the same officer, containing in substance the same allegations. The plaintiff in error was convicted upon the second count of the indictment. On the trial, evidence was given in relation to the merchandise upon the premises, on behalf of the people. It is claimed by the people that the evidence shows that the fire was designed, and for the purpose of making a false claim against the insurance company, although that is not important in regard to the accusation of which the plaintiff in error was convicted. The first objection taken on the trial, was to any testimony being given in support of the indictment, on the ground that the act of May 4th, 1868, creating the office of metropolitan fire marshal, giving him power to administer oaths, and condemning false swearing in any proceeding before him, had been repealed. This objection is not tenable.

1. The act of May 4,1868, has not been repealed. The Revised Statutes gave to the chief of police the authority to investigate the origin of fires. The act of May 4, 1868, created the office of metropolitan fire marshal, and made it his duty to “ examine into the cause, circumstances and origin of fires (occurring in those portions of the metropolitan police district in which regular patrolmen of metropolitan police are authorized and appointed), by which any building, vessels, vehicles, or valuable personal property shall be accidentally or unlawfully burned, destroyed, lost or damaged, wholly or partially; and to especially inquire and examine whether the fire was the result of carelessness or the act of an incendiary. The metropolitan fire marshal shall take the testimony on oath, of all persons supposed to be cognizant of any facts, or to have means of knowledge in relation to the matters herein required to be examined and' inquired into, and cause the same to be reduced to writing,” etc. -

The third section of the act gives him power to issue a notice, in the nature of a subpoena * * * to compel the attendance of any person as a witness before him, to testify in relation to any matter which is, by the provisions of this act, a subject of inquiry and investigation by the said marshal; ” “to administer and verify oaths and affirmations to persons appearing as witnesses before him; and false swearing, in any matter or proceeding aforesaid, shall be deemed perjury, and shall be punishable as such.”

This act was followed, by the act of April 26, 1870, which was amendatory of an act passed in the same year, and is as follows : “ Section 44. * * * The board of police shall have power to appoint a fire marshal, chief clerk, and assistant clerk, who shall hold office during the pleasure of the board, and such board, marshal, and clerks, shall have the like powers, and perform the like duties, as those provided by chapter 563, of the Laws of 1868, so far as they are applicable to the city of New York and the compensation of such marshal and clerks shall be the same as now fixed in and by said acts.”

The charter of 1873, gave the appointment of the fire marshal to the fire commissioners, but conferred upon the marshal all the powers, and imposed upon him all the duties, given and imposed by the previous statutes relating, to that office.

The act of 1871 did not,' in any way, limit the powers and duties of the marshal: By section 4, it invested him with the same powers conferred by the act of 1868, and also the same powers conferred upon the superintendent of police of the city of New York, by the Revised Statutes. The marshal, by these acts, was authorized to examine into the cause, circumstances and origin of fires, by which any building, vessels, vehicles, or any valuable personal property should be accidentally or purposely destroyed, lost or damaged, wholly or partially; and especially to take the testimony on oath of all persons supposed' to be cognizant of any facts, or to have means of knowledge in relation to the matters therein required to be examined and inquired intoalso to compel the attendance of witnesses, and to administer oaths and affirmations to persons appearing as witnesses before him. It is very clear, therefore, that, for any false swearing as to any matter legitimately within the sphere of the marshal’s powers, an indictment may be had, and a conviction secured on competent evidence. The further objection, that there was no legal proof that the witness, Mr. Sheldon the fire marshal, was the officer referred to in the indictment, is equally unavailable. He testified, without objection, that he was then, and had been fire marshal from the twenty-first of May preceding his examination; and on cross-examination stated by whom appointed, and the manner of his appointment.

The indictment, as already suggested, was predicated of the oral testimony of the plaintiff in error, and his affidavit signed by him and sworn to before the fire marshal. Two counts were employed to develop both phases of the offense. It is, perhaps, unnecessary to cite authorities to show this to be an authorized mode of pleading. It may be said, however, that though a defendant cannot be charged with different felonies in different counts, yet he may be charged with the same felony, in different ways, in several counts, to meet the facts of the case. The offense herein was precisely the same, but charged in different ways. The plaintiff in error was charged with having sworn falsely in his affidavit, of and concerning several necessary and material matters contained therein, in substance and effect following, that is to say,” etc. One of the matters stated, as alleged, was that there were on the premises 60,000 cigars; whereas, by the affidavit, when it was produced, the statement made was, that there were 65,000 cigars; and in this respect there was a variance between the proof and the charge. The plaintiff in error urges this as a fatal error; but he is mistaken. When the oath is set out “in substance and to the effect following,” a literal copy is not required. It is not necessary to set forth the affidavit, etc., on which perjury is assigned verbatim,

“ To my apprehension,” said Marcy, J., “ the substance and effect of an instrument in writing cannot, either in common parlance or legal import, be understood to mean an exact copy of it.” Ho apprehension could be reasonably entertained, that the plaintiff in error, being convicted of the offense charged upon the paper, could be convicted a second time for the same offense. The variance is clearly a clerical error.

These views dispose of the objections to the authority of the fire marshal, to the admissibility of the affidavit on account of the alleged variance, and to the legality of the conviction under one of the counts. There remains to be considered, however, the propriety of investigating the question, as to the value of the property as stated in the affidavit, to which objection was made, and of which it seems to have been claimed perjury could not be assigned. It is true that the value of the property, in the abstract, is not at all material to the question of how the fire originated, but when the inquiry is extended, and the examination embraces not only that subject but another, namely, whether it was the result of carelessness or the act of an incendiary, it may become material to know whether any misrepresentation has been made in reference to the property assumed or said to be destroyed, and, if yea, whether it furnished a motive which might influence one to become an incendiary, whoever he might be. The complaint against the plaintiff in error was two fold: that he had sworn he was absent from this city when the fire took place, when he was not in fact absent; and, secondly, that he had falsely augmented the value of the property on his premises at the time of the fire. In seeking the origin and circumstances of the fire, and with a suspicion against the plaintiff in error, his asserted value of the property, if enhanced beyond its true value, was an important and material element, and one necessarily embraced legitimately within the inquiry established. It was not erroneous, therefore, either to admit the evidence on the question of value, or submit the issue created by it to the jury. The testimony in reference to the absence *of the plaintiff in error from the city, was strong on his behalf, it would seem from the appeal book, but we cannot say that it was sufficient to overcome the testimony given on behalf of the people. The design of the statute, in creating a fire marshal, and investing him with broad and ample powers, was to detect and punish the crime of arson, which, without that officer, might not be discovered; and, therefore, the legislature made false swearing before him perjury, if it related to any '• subject legally within his authority. The facts and circumstances which would tend to show the act of firing, might in many instances become valuable in demonstrating the perjury committed, particularly those beai’ing on the existence of motive, which is always coupled with design.

The judgment must he affirmed.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed.

       Laws 1868, chap. 563, p. 1168, vol. 2.

        Supra.

         2 Rev. Stat (5th ed.), 990.

       Sec. 2.

       Chap. 383.

       Chap. 137, § 44.

         Sec. 21.

       Laws 1873, p. 504.

       Sec. 76.

       Laws, p. 1277, chap. 584.

        Supra.

       Barbour’s Cr. Pr., 340, and cases cited,

       The People v. Warner, 5 Wend., 271.

       The other opinions of this term are contained in the preceding volume.