Volume 1 — Parker's Criminal Reports

The prisoner was indicted for grand larceny, in feloniously stealing a pocket book, containing one hundred dollars in money, the property of Alonzo Howland, on the first day of May 1839, at Stillwater. It appeared in evidence that the prosecutor, about five o’clock P. M. of the first of May, went into a necessary, in the rear of Mr. Lawrence’s store, in Stillwater, on a call of nature, and laid his pocket book, containing $ 100, on the bench, and came out without it.

The prisoner, Henry G. Green, was indicted for the murder of Mary A. Green, his wife, by poisoning her with arsenic, and’ pleaded to the indictment not guilty. The cause came on to be tried at the Rensselaer oyer and terminer, on the 7th July, 1845, before Parker, circuit judge, and Davis, Bull and Waite, county judges. The trial occupied two weeks, the evidence relied upon by the prosecution being mostly circumstantial. About fifty witnesses were examined.

The prisoner was indicted for the murder of Osman N. Steele. At the time of Steele’s death, he was the under sheriff of the county of Delaware, and was shot while engaged in the col- ■ lecting of rent, by some persons in a large assemblage of people who had collected for the purpose of resisting the collection of the rent, most of whom were armed and disguised. The prisoner pleaded, to the indictment, not guilty.

The prisoner presented his petition to the circuit judge, setting forth, that he was unjustly imprisoned in the bridewell of ijie city of New York, and praying for the allowance of a ha-beas corpus. The keeper of the bridewell in his return to the habeas corpus, set forth the following commitments as the authority by which he held the prisoner in his custody: New York General Sessions of the Peace: The People of the State of JVew York v. George Potter. January 8th, 1846.

On the 22d October, 1845, on a petition presented by Lewis Napoleon, setting'forth that a colored boy, whose name was unknown, was… Held: under and by virtue of the laws of the state of Georgia, secreted and concealed himself on board the brig Mobile, of which 1 am master, while lying at the port of Savannah, in the said state of Georgia; that said vessel sailed from said port on the thirteenth of October instant for the port of JVew York, without any knowledge on my…

On the 31st of August, 1846, Eliza Phillips presented to the circuit judge a petition for a writ of certiorari, to certify the cause of her detention in the penitentiary on Blackwell’s Island.

The prisoner was a notary public in one of the departments of France, which he left and came to this country. After he had left his residence, it was charged against him that he was a defaulter to his clients to a large amount, for moneys of theirs which he had embezzled, which embezzlement he had attempted to conceal by means of forgeries. Complaint to that effect was made against him, before a French committing magistrate, who issued a warrant for his arrest.

The circumstances under which this application was made, sufficiently appear in the opinion of the court. 1. The writ of habeas corpus is a substantial right, and not the mere shadow of a right.

This was an action of debt on a recognizance, tried at the Schoharie circuit, before Parker, circuit judge, in May, 1846.

The prisoner was indicted and convicted of robbery in the first degree.

The prisoner was indicted with one Nesbitt, for the murder of Timothy Shea, on the 28th of September, 1848, by firing a pistol at him. The indictment contained two counts, one charging that the pistol was fired by Austin by the aid and procurement of Nes-bitt, and the other that the firing was by Nesbitt, and that Austin aided and encouraged.

<p>A trial and conviction, before a court of Special Sessions, for an assault and battery, are no bar to a subsequent indictment for manslaughter, where the person assaulted dies subsequently, of the wounds caused by the blows, for inflicting which the complaint for assault and battery was made.</p> <p>A former trial is no bar, unless the first indictment was such as the accused might have been convicted upon, by proof of the facts set forth in the second indictment. To constitute a bar the offence charged in both indictments must be identically the same in law as well as in fact.</p> <p>Held, that upon the trial of an indictment for murder where death has ensued, the accused can not be convicted of a simple assault and battery,- though he may be of manslaughter.</p>

On the return to a writ of habeas corpus sued out for the prisoners, it appeared they were detained on a full warrant of commitment for trial on a charge of grand larceny issued by one of the police magistrates of the city. They filed their allegations in answer to the return, setting up that they were arrested without warrant by a person not a police officer.

The prisoner was indicted for robbery in the first degree, against the form of the statute. (2 R. S. 677, § 55.) The indictment also contained a count for robbery in the second degree The prosecutor Russell Skeele, testified that he was 67 years old, and had resided in Sudbury, Vt., for 37 years, and that he had been acquainted with the prisoner for three or four years.

The defendants were indicted in the court of sessions of the offence of embezzlement. There were two counts in the indictment.

This case was brought up by certiorari from the Rensselaer Oyer and Terminer. The indictment there found was as fol lows: County of Rensselaer, ss.

<p>A person convicted of perjury is an incompetent witness, though he has heen pardoned by the governor, aud the pardon purports to restore him to all his civil rights, the legislature having provided that such convict shall not be received as a witness till such judgment he reversed. Such is the law, though the exclusive power of pardon be vested in the governor.</p> <p>Such incapacity to testify is the result of a rule of evidence and not a punishment of the offence.</p> <p>Where a defendant proves the making of an admission by the plaintiff, the latter has a right to give evidence in explanation of the admission and to have the witness state all that was said upon the subject at the time.</p>

This was a writ of error to the court of sessions of Ontario county.

Indictment for arson charging the defendant with burning in the night time a dwelling house in the city of Utica, in which there were at the time human beings. The indictment also contained counts describing the building as a barn, immediately connected with, joined to and a part of a dwelling house. The fire occurred on the night of the 8th of April, 1851, and wus kindled by the prisoner, in a stable or barn in which were several horses.

This was a motion for a new trial. The prisoner had been convicted in March, 1851, of the murder of Charles M. Rousseau and sentenced to be executed on the 2d day of May, 1851. Before that time the governor respited his execution, to enable him to avail himself of a bill of exceptions taken on the trial.

This was a writ of error to the New York Oyer and Termi-ner, where the plaintiff in error was tried for murder, Justice Edmonds presiding, and sentenced to death. A bill of exceptions having been settled, a writ of error was allowed with a stay of proceedings. The questions presented by the exceptions are fully stated in the opinion of the court.

The prisoner was tried on an indictment for the murder of Daniel Kane, at the Westchester Oyer and Terminer, in November, 1850, Justice McCoun, presiding.

The prisoner was tried and convicted of the murder of his wife Victorine, by poisoning her with arsenic. On the trial, it appeared in evidence that the deceased, in company with the prisoner (from whom she had previously separated), returned from the country on Tuesday afternoon the 31st of July; that they were together that night, and on the ensuing morning the deceased was attacked with violent vomiting and other symptoms usually accompanying poisoning, with arsenic.

<p>Where, on a criminal trial, a person is drawn as a juror and challenged to the favor,.and called as a witness in support of the challenge to prove a bias growing out of what he had heard or read on the subject, it is proper on his cross-examination, to ask him his opinion as to the character and extent of the supposed bias and whether he thinks it would influence him after hearing the evidence.</p> <p>Where, on the trial of a challenge to the favor, improper evidence is received and the triors find the juror indifferent, and he is then challenged peremptorily, and it appears the prisoner had not exhausted all his peremptory challenges when the panel was completed, the prisoner can not'afterwards avail himself of exceptions taken to the admission of such improper evidence before the triors.</p> <p>To entitle the prosecution, on a trial for murder, to introduce evidence of the dying declarations of the deceased, it must appear by the preliminary evidence, that the declarant knew, or believed, his injury was mortal and that death was rapidly approaching. This may be shown by the expressions and conduct Of the deceased, or by other satisfactory evidence.</p> <p>After the introduction of the proper preliminary evidence, the prosecution is entitled to show such dying declarations, notwithstanding there may be other witnesses by whose testimony the same facts might be proved, which are sought to be established by such dying declarations.</p>

This was a writ of error to the Columbia Oyer and Terminer In October, 1851, the defendant was tried in that court 'on an indictment for rape, alleged to have been committed on the person of Sarah Pilling, and found guilty and sentenced to imprisonment in the state prison at Sing Sing for the term of ten .years. On the trial, many witnesses were called and examined on both sides. The defendant then called and examined John W. Wood, who gave evidence material in the cause.

The defendant in error was convicted of perjury at the New York General Sessions, on the 19th October, 1849, and sentenced to the state prison for five years and four months.

The prisoner had been indicted at a previous term of the court for burglary and larceny.

The defendant was indicted for the seduction of an unmarried female, under the act of 1848, entitled “ An act to punish seduction as a crime.” The indictment contained three counts. The first count charged that the defendant under promise of marriage seduced and had illicit intercourse with the female, she being unmarried and of previously chaste character, following the language • of the act, without setting out the promise or averring any mutual promise on her part.

The indictment charged the mixing of poison, arsenic, with flour and causing and procuring it to be administered to one William P. Loveland, with intent to kill and slay him. It contained several counts.

<p>In charging a jury, an expression of opinion by the judge as to the effect of the evidence, leaving the jury to decide the question notwithstanding such expression does not furnish a valid ground of exception: aliter, if the language, which is the subject of exception, amounts to an instruction as to the law applicable to the evidence in the case</p> <p>Where the question, on the trial, was whether the prisoner was guilty of murder or manslaughter, and the presiding judge, in his charge to the jury, after commenting on the evidence for the prosecution, said, u Now, gentlemen, if you believe this evidence, and believe that the crime was committed by the defendant, under the circumstances as given to you by these witnesses, I see no groundto warrant you in finding the defendant guilty of manslaughter, but in my judgment he is then guilty of murder,” it was held to amount to an instruction upon a conclusion of law: and the case properly presenting questions of fact to be passed upon by the jury, vi¿., whether the killing was by “premeditated design to effect death,” or in the “heat of passion,” #c., the charge was held to be erroneous and a new trial was awarded.</p>

This was an indictment for incest with a daughter of the defendant, founded upon the statute 2 R. S. 688, § 12, which provides that “Persons being within the degrees of consanguinity within which marriages are declared'by law to be incestuous and void, who shall intermarry with each otherj or who shall commit adultery or fornication with each other, shall, upon conviction, be punished by imprisonment in a state prison for a term not exceeding ten years.” The alleged daughter…

These cases came before the court on writs of error from the New York Oyer and Terminer, where there had been convictions for murder in both cases, Justice… Held: in a carefully considered opinion, that in all cases (except one class which is not involved in these cases and was not in that), there must be an intention to kill to constitute the crime of murder, and that where there was such an intention, whether formed on the instant or previously entertained, it was murder.

This was an application for a mandamus to compel the court of sessions to proceed to the sentence of William Case, who was convicted in said court, of arson in the third degree. The court on motion of the defendant granted a new trial upon the merits and refused to pass sentence according to the verdict.

The defendant and Carrington McIntyre were jointly indicted in the Madison county sessions for burglary and larceny and demanded separate trials, and that Carrington McIntyre should be first tried. A separate trial was granted, but the court refused to compel the district attorney to try McIntyre first; to which refusal the defendant, excepted.

This was an appeal from the county eourt of the county of Columbia. The action was brought originally in a justice’s court to recover upon a note for $50 and interest. The defendant in his answer claimed the right to set off against the plaintiff’s demand certain balances of account, which the plaintiff had formerly owed to Peter Finkle and Calvin Finkle, and which had been assigned to the defendant before suit brought.

This cause- came up on writ of error to the court of sessions of the county of Albany.

Indictment for perjury, tried at the sessions in Monroe County, in January, 1852. The indictment set forth, that one James Kane commenced an action against Catharine Kane, his wife,' for a divorce for adultery; that she put in an answer to the complaint, and among other things alleged- that the plaintiff had committed adultery with one Ann Golden, which allegation was denied in the reply; that in October, 1851, the action was referred to Isaac It.

This was an action upon a recognizance, tried before Parker, Justice, at the Columbia Circuit, in April, 1853. The complaint was as follows: Supreme Court, Columbia County. — The People of the State of Hew York agt.

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

<p>On a criminal trial, it is no objection to proving a confession, of the defendant, that it was made when .he was under oath, if it appear that it was free and voluntary and not made under the influence of fear or hope.</p> <p>What a person says, when examined as a witness in a legal proceeding, may be used in evidence against him; but the statements or oath of a party accused can not be' given in evidtence. Lewis" Case, 6 Carr. (¡ P. 161-; David's Case, id. 177; and Owen’s case 9 Carr, fy P. 238; reviewed and overruled.</p> <p>Where on the trial, of a party for the murder of his wife, it appeared that the prisoner had been examined as a witness before the coroner’s inquest, on the evening subsequent to the death, and that he had not then been charged or accused of the crime, and'that his statements, then made under oath, were free and voluntary, such statements were held to be properly receivable, in evidence against him.</p> <p>Held also, that evidence of conversations between the prisoner and his wife, and between the prisoner and his brother in-law, tending to show an alienation of affection on his part in regard to his wife, was admissible on the question, of. motive.</p> <p>Held also, that the will of the prisoner’s father-in-law was properly'received in evidence, for the purpose of showing that the pecuniary expectations, which the prisoner might have entertained by reason of his alliance with the &mily, had been disappointed.</p>

<p>A bill of exceptions lies only to correct an erroneous decision upon some point of law made on the trial, or some erroneous opinion delivered to the jury in the charge of the court, to which an exception was taken at the time.</p> <p>In a case where the sufficiency of an indictment is not involved in some decision made, or opinion advanced, at the trial, the only mode of reaching a defect ‘n the indictment is on a motion in arrest of judgment, or by a writ of erroi brought on the record of judgment itself.</p> <p>If an Indictment for a statutory offence alleges all the facts which the statute requires to constitute the offence, this, as a general rule, is sufficient.</p> <p>Where an indictment charged that the accused administered to one A. D., a pregnant woman, a certain medicine and drug, and used and employed upon her body a certain instrument, with intent to procure the miscarriage of the said A. D., contra formam statuti, ^-c., Held that the facts charged were sufficient to constitute a misdemeanor, under the act of May 13, 1845 to prevent the procurement of abortion.</p> <p>The decision in The People v. Zohman, (2 Barb. S. C. Rep. 220,) upon this point approved and adopted.</p> <p>If is a matter of discretion with the court to allow the district attorney to try prisoners who are jointly indicted, for a mindemeanor jointly or separately, as it seems best to consist with the advancement of justice; and the court has no power to correct any error in the exercise of that discretion upon a bill of exceptions.</p> <p>That discretion may be exercised by an order made on the motion of the district attorney, as well as on that of the prisoner’s counsel.</p>

This was an application on habeas corpus, for the discharge of Alex. Heilbonn from arrest, under a warrant issued against him as a fugitive from justice, by U. S. Commissioner Nelson, under the treaty between the government of the United States and Great Britain, on a charge of forgery. The facts of the case are stated in the opinion of the judge. made the following points: 1.

The prisoner was indicted for uttering and publishing as true, in the county of Jefferson, a note made by himself, on which the names of certain individuals were alleged to have been forged as endorsers, knowing such endorsements to be false, forged and counterfeit.

This was a writ of error, brought by the defendant to review the proceedings of the court of sessions of the county of Monroe, upon the trial of the defendant on an indictment.

This was a writ of error to the court of sessions of Washington county. The plaintiff in error was indicted under the act passed March 22, 1848, entitled “ an act to punish seduction as a crime.” The indictment contained two counts.

The plaintiff in error was convicted of an attempt to commit grand larceny. The court of sessions sentenced him to confinement in the state prison at Auburn, for the term of two years and six months. Tho writ of error was prosecuted to reverse the sentence. cited 2 R. S. 679, §63; ib. 700, § 12; ib. 698, § 3; subd. 2, 3.

This case came before the court on certiorari to the court of Oyer and Terminer of Ontario county. The facts are sufficiently stated in the opinion of the court.

This was a certiorari to the Oyer and Terminer of the county of Onondaga. The plaintiff in error was indicted in that court for forgery.

Writ of error to the St. Lawrence Oyer and Terminer. The prisoner was indicted, tried,, convicted and sentenced to the state prison, under the “ act to punish seduction as a crime.” {Laws of 1848, ch. 111.) The indictment was found in February, 1853; the prisoner arraigned in'June, 1853, and tried in October, 1853 — Mr. Justice Cady presiding.

Writ of error to the Court of Sessions of Orleans county The plaintiff in error was indicted at the Court of Oyer and Terminer held in said county in the month of September, 1852, for disobeying an order of the. board of health of the village of Albion in said county of Orleans.

An indictment for the crime of znurder was found against the plaintiff in error in the Dutchess Oyer and Terminer in the following words:… Held: in his hands, the said Hannah Cromwell, otherwise called Hannah Lake, in and upon the head of her the said Hannah Cromwell, otherwise called Hannah Lake, feloniously, willfully, and of malice aforethought, did strike, beat and cut, giving her the said Hannah Cromwell, otherwise called Hannah Lake, by such striking and beating and…

<p>Arson is an .offence against the property of another; and a person can not become guilty of arson in the first degree, by setting fire td’his own house.</p> <p>To convict a person of arson in the third degree, under S 5, 2 U. S. 667, it is necessary to allege that the house was insured against loss or damage by fire and‘that the offence was committed with intent to defraud the insurance company: under that section a person may be convicted of burning his own dwelling house, but it is still an offence against the property of another, the object of the crime being to defraud the insurer, who has an interest in the -preservation of the property.</p> <p>•Where an indictment for arson charged that .the prisoner, in the night time, feloniously set fire to his own dwelling house, in which .there were at the time divers human beings, w-ith intent to burn -the said dwelling house and with intent, thereby, to defraud the Poughkeepsie Mutual Insurance Company, on demurrer, it was held that the indictment was not sufficient to bring the offence within the first degree, "because'it was inot the dwelling house of another, and that it was not sufficient under the third degree, because it was not alleged in the indictment that the property was insured, and the indictment was adjudged to he bad.</p>

The defendant was tried and convicted at the Madison county Oyer and Terminer in October, 1853, and sentenced to two years imprisonment in the slate prison on an indictment for receiving stolen goods and property, with a knowledge at the time of their having been stolen., The conviction was had upon the first count of the indictment.

The defendant was sued in the Supreme Court, on a recognizance entered into by him as a bail of one Smith, conditioned for his appearance to answer a criminal charge. An answer was put in, by which issue was joined, and the cause was brought to trial at the Dutchess Circuit, before Mr. Justice Dean, and was tried by the court without a jury. The questions arising on the pleadings and the evidence at the trial are stilted in the opiiiion of the court.

On the 23d March 1854, Malachi Moneghan was indicted in the Livingston county sessions for grand larceny and pleaded not guilty. Held: i+ may be answered that at no time was a term appointed, of sessions for March, and also, it is insisted that the law of 1851 supersedes the statute under which the terms of general sessions were held. II.

The prisoner was indicted, at the Yates Oyer and Terminer, for robbery in the first degree, and the indictment was sent to the Yates couuty sessions for trial. The prisoner having pleaded not guilty, the case came on for trial before said court of sessions on the 16th of May, 1854, before Lewis, county judge and the justices of the sessions.

Writ of error to the Suffolk county sessions The plaintiffs in error, merchants, of the town of Huntington, in the county of Suffolk, were indicted for an alleged violation of the statute entitled “Of Excise and the Regulation of Taverns and Groceries.” The indictment set forth that the defendants therein, at various times during the summer of 1853, at the town of Huntington aforesaid, did willfully, unlawfully and wrongfully sell to divers persons strong and spirituous…

The prisoner who had been confined in the common jail of Kings county, was brought up on habeas corpus.

The prisoner was brought up on a writ of habeas corpus. It appeared that he had been indicted and arrested for grand larceny in stealing a dog. He claimed to be discharged on the ground that a dog was not the subject of larceny.

These defendants, Isaac Thayer and Israel Thayer, Jr., were jointly indicted for the murder of John Love; and they consented to be tried together. The counsel for the prisoner, having challenged twenty jurors peremptorily, insisted upon the right to twenty more peremptory challenges; claiming that as there were two more persons on trial, each was entitled to the number of challenges allowed to a person indicted for a capital felony.

The prisoner was tried upon an indictment for the murder of Fanny Moseiy, by shooting her, in February, 1825. This case depended entirely upon circumstantial evidence. Very few questions of law arose upon the trial, and it is only necessary to notice that part of the charge of the court which relates to the principles which are to govern the jury in deciding a case depending upon circumstantial evidence.

This case came before Chancellor Walworth, in November, 1842, upon an application for the allowance of a writ of error to the court of Oyer and Terminer of the city and county of New York. The applicant was indicted for the murder of Samuel Adams; and was tried and convicted at a court of Oyer and Terminer in the city and county of New York, composed of the circuit judge of the first circuit and two aldermen of that city, in January, 1842.

The defendant was tried at the Greene Oyer and Terminer, held in April, 1854, Harris, J., presiding, for the crime of rape, and convicted. Upon the application of the defendant’s counsel, sentence was suspended, and, at an adjourned session of the court, held in May following, a motion was made for a new trial, upon the ground that the verdict was against the weight of evidence. The facts will sufficiently appear in the opinion of the court.

The prisoner -was indicted for petit larceny, as a second offence, in the following form: State of New York, Columbia County, ss: The jurors of the people of the state of New York, in and for the body of the county of Columbia, upon their oath and affirmation do present, that at the court of common pleas begun and holden at Lenox wüthin and for the county of Berkshire in the commonwealth of Massachusetts, on the first Monday of January in the year 1853, George Caesar was…

The prisoner had been indicted for the murder of Timothy Lanagan by poison, and pleaded not guilty. The cause was brought to trial at the Oyer and Terminer held at Troy in the county of Rensselaer, in May, 1854. The facts of the case, as proved on the trial, are sufficiently stated in the charge to the jury*