Volume 2 — Parker's Criminal Reports

The prisoner was indicted for an assault and battery on his wife. It appeared on the trial that the prisoner attempted to .correct one of his children, and that his wife interfered and made such a noise as to alarm the neighborhood.. She testified that he struck her on the head with his hand, and bruised her severely. contended that the husband had a right to give his, wife moderate correction.

The prisoner was indicted for burglary, committed in the dwelling house of Elias Dewey. Dewey proved the breaking of his house in the night time, and that a gun and hat were stolen out, which he did not miss till afterwards. He heard the prisoner was taken, and that his gun and hat were in the possession of N. Nichols. He sent his son for them, and he returned with them. The gun and hat were found in the possession of M. Moran.

The prisoner was indicted, 1st, for stealing a $2 promissory note, commonly called a bank note, &c. 2d. For robbing a dwelling house, some person being therein. 3d. For a second offence of petit larceny, after a conviction before three justices, at a court of special sessions, for a previous offence.

The prisoner was indicted for an assault and battery upon the jailer. It appeared on the trial, that the prisoner was in the room with other prisoners, who had been brought from the Salem jail to this court at Sandy Hill, by the jailer.

The prisoner was indicted for blasphemy, in speaking the following words: “ God Almighty is a whoremáster, the Virgin Mary a damned whore, and Jesus Christ' a bastardé The public prosecutor to establish the speaking of the words, called Alfred White, and offered to prove by him, that in a conversation with the prisoner, he admitted to the witness that at a whortleberrying party he had made use of the expressions charged in the indictment. then offered to prove that the…

The prisoner was indicted for the murder of Andrew Fish, and was tried at the Warren Oyer and Terminer before Walworth, Circuit Judge, and two Judges of the County Court. moved to put off his trial on the ground that the indictment had been recently found, at the court then sitting.

The prisoner was indicted for perjury. It appeared that in June, previous to the trial, he came in company with one or two other persons, from the county of Schenectady to a magistrate in the county of Montgomery, to whom he was a stranger, and made a complaint against one James Thomas, for the murder of a man on hoard of a sloop on the Mohawk river, in that county, and he testified to a number of facts, positively charging Thomas with the crime.

The prisoner was indicted for forging a note against one Elisha Oakley, for twenty-live dollars. Oakley testified that he gave to the prisoner a note for $5, of the same date as the one produced, hut that he never gave one for $25, and .that his name subscribed to the note was not his signature. Several witnesses stated that they were acquainted with the handwriting of the prosecutor, and believed it was not his handwriting.

The prisoner was indicted for horse stealing. He was in the employ of the owner of the horse, as a common laborer; and it was part of his duty to water and feed the horse, which was kept in a stable. In the absence of the owner and his family, the prisoner went to the barn and took out the horse and saddled and bridled him, went to the house and took from thence a coat and pantaloons belonging to the prosecutor, and rode off.

The prisoner was indicted for burglary for breaking and entering the dwelling house of William Stratton, at Saratoga Springs, and stealing boots, shoes, &c. The place in which the felony was committed was a room in the dwelling house of Stratton, occupied by him as a shoe shop. There was no communication between the shop and the other part of the house, which was occupied by Stratton’s family, except by an outside door which opened into a yard surrounding the whole building.

The prisoner was indicted for assault and battery upon Richard Van Der Carr, with intent to murder him. The prisoner and Van Der Carr were at work in a store in Waterford, carrying out wheat which Samuel Sillman was measuring up, Van Der Carr, without being in anger, was calling the prisoner by bad names and endeavoring to irritate him; and the prisoner had once or twice clinched him, but they had been parted by the person who was measuring the grain.

The prisoner was indicted for passing counterfeit money. He had passed several bills and had others in his possession. He was a transient person and pretended to be traveling. There were many facts to induce a belief that he knew the bills to be counterfeit, and that he was a retailer of counterfeit bills. The counsel for the people offered his examination, taken before the magistrate, in evidence.

The prisoner was indicted for an assault and battery, with an intent to commit a rape on Anne Cubes, who was not present at the trial. She and her husband were transient persons and foreigners, and there were strong reasons to believe they had been hired to go off by the friends of the prisoner. Brown, the principal witness, who resided in Canada, had been offered a sum of money if he would not appear against the accused.

The prisoner was indicted for the murder of John Hughes, a boy four years old. The facts, as they appeared on the trial, were as follows: The prisoner with his wife and three children, the two oldest being children of his wife by a former husband, came to the village of Ogdensburgh from Canada in search of employment, about four days before the alleged murder, and put up at a public house.

The prisoner had been indicted at the court of General Sessions of the Peace in Oneida county, and the indictment had been removed by certiorari into the Supreme Court, (a) but the certiorari had not been returned.

The prisoner was indicted for passing counterfeit money, and the cause was tried at the Oneida Oyer and Terminer, in December, 1823.

The prisoner was indicted and convicted for forging a receipt in the words following: “ Received of Walter Hoag his note of hand for eight dollars, when paid it will be in full of debt, dues and demands of all kinds whatever up to this date. Pompey, October 8th, 1819.

Error from the Oyer and Terminer of Ulster county, where Low was convicted of grand larceny.

The prisoner was indicted for robbery, alleged to have been committed upon the 18th of August, 1849, and was tried at the Oyer and Terminer for Kings county, on the 10th of October following.

This cause was brought up to this court by a writ of certiorari, which was as follows: The People of the State of New York: To the Court of Oyer and Terminer, in and for our county of Tioga,… Held: at the Court House in the village of Owego, in and for the county of Tioga, on the second Monday of April, in the year of our Lord one thousand eight hundred and fifty-one.

The indictment alleged that in September, 1850, at the town of Easton, in the county of Washington, Skiff, with the intent to cheat and defraud one Samuel Hale, did falsely pretend and represent to… Held: that the question raised involved matters of fact for the consideration of the jury, under the charge of the court, and that the defendant’s motion to be discharged was denied, to which decision and refusal the defendant’s counsel excepted.

It appeared by the return to the writ of error that the plaintiff in error had been indicted, tried and convicted of the murder of James W. Holland, and sentenced to be executed on the 17th of August, 1853.

The prisoner was indicted and convicted at the April term of the Court of Oyer and Terminer, in Chemung county, 1854, for having in his possession, with intent to pass the same, counterfeited bank bills, with intent to cheat and defraud the Commercial Bank, &c. On the trial certain exceptions were taken to the ruling of the court, which will sufficiently appear in the. following opinion.

<p>It is not a misdemeanor, under the statute, for an innkeeper to sell spirituous liquors to he drank on the premises, on Sunday, to persons not lodgers or travelers.</p>

This was a certiorari from the Orleans Oyer and Terminer, where the defendant was convicted of rape.

<p>The defendant had been convicted partly on the testimony of a defendant jointly indicted with him without discharging such codefendant from the record.</p>

<p>It is not error for a Justice of the Supreme Court to preside at the Oyer and Terminer, during the year in which he is a Judge of the Court of Appeals.</p> <p>Although he is a Judge of the Court of Appeals, he is also still a Justice of the Supreme Court, and may exercise all the powers and discharge all the duties of a Justice of the Supreme Court.</p>

The prisoner was indicted for Bigamy. The facts alleged in the indictment were that Mosher married a wife in Pennsylvania and lived with her in that state for several years and left her and went to Canada and there married another woman, his wife being still living in Pennsylvania.

<p>On the trial of an indictment for obtaining an endorsement of a note by false pretences, it is proper for the prosecutor to state, as a witness, what influence the representations of the defendant had upon him, by way of inducing him to endorse the note.</p> <p>Where, on such trial, it had been charged in the indictment and was proved on the trial, that the defendant obtained the endorsement by representing, among other things, that all his last year’s debts had been settled and paid, it was held that such representations could not be shown to be false, by proving a specific indebtedness existing at the time, unless the existence of such specific indebtedness had been alleged in the indictment.</p> <p>On the trial of an indictment in the Court of Sessions, the County Judge, presiding at the trial, can not be sworn and examined as a witness; he can not act at the same time in the capacity of both judge and witness, (a)</p>

This was a certiorari to a court of Special Sessions. The writ of certiorari was as follows; The People of the State of New York, to Daniel C. Stewart, one of the Justices of the Peace in and for the County of Albany, Greeting: We haying been informed that Warren Benjamin, of said county, was lately, in a court of Special Sessions held before you, convicted of having assaulted and beaten William H. Smith, and being willing for certain causes to be certified of the said…

The prisoner was indicted for a rape and had been once tried and convicted. Held: under the decision of the Supreme Court, that a conviction for the crime of rape could not be had. insisted that the prisoner could only be convicted of a simple assault and battery upon the ground that the law adjudging that he could not commit the offence charged, he could not be guilty under the law of a criminal intent to commit…

The prisoner in this case had been tried and convicted of murder at the Dutchess Oyer and Terminer. The conviction was afterwards reversed by the Supreme Court, and a new trial awarded. (1 Park. Cr. R. 495.) When the public prosecutor moved on the cause for the second trial, the prisoner’s' counsel alleged present insanity, and a jury was impanneled to try the question. Fifteen witnesses (physcians) were examined.

<p>On the trial of the prisoner for the murder of his wife, it having been proved that he killed her by stamping upon her, the court charged the jury that the crime was murder, if the prisoner intended to take the life of his wife ; but that if he intended only to wound and bruise her, it was manslaughter in the second degree.</p> <p>The court further charged, that, if the prisoner designed to take the life of the deceased, it made no difference as to the offence, whether he was drunk or sober at the time.</p> <p>That though intoxication does not excuse crime, yet that the jury might take into consideration the fact of intoxication, so far as it would aid them in determining with what intent the act was done.</p> <p>It is a rule of the common law, that a person is held to intend that which in the ordinary course of things would be the natural result of his own acts.</p> <p>Illustrations of this rule given by the presiding judge, in his charge to the jury, with explanations as to its applicability in a case of intoxication.</p> <p>In cases not free from doubt, the jury are at liberty to consider the pris< ner’s previous good character; but such a defence is not available where the guilt of the accused is clearly established.</p>

The prisoner was tried on an indictment for the murder of his father. After eleven jurors had been sworn and taken their seats, John C. Leak, was called as a juror, and being informally examined by consent, stated that he had conscientious scruples against finding the accused guilty of murder from what he had heard, although he had not heard enough to prevent his concurrence in a conviction if the evidence should call for it.

This was a certiorari to the Rensselaer Oyer and Terminer, in which court the prisoner had been convicted before Harris. Held: requiring him to summon the grand jury, who were drawn, was an omission fatal to the conviction in this case. (2 R. S. 3d ed. p. 271, 272, § 43, 44, 45.) 1. This precept is recognized as a process. (2 R. S. same ed. 535, 536, § 93-95.) 2.

This case came before Justice Parker, at Chambers, on a writ of liabeas corpus. It was set forth in the petition on which the writ was allowed, that the prisoner was restrained of his liberty in the custody of James McNutt, a police constable, under a warrant issued by John 0. Cole, Esq., a police justice of the city of Albany, for an alleged violation of an act entitled “ An act for the prevention of intemperance, pauperism and crime,” passed April 9, 1855.

<p>The right to a trial by a common law jury of twelve men, in cases of misdemeanor, is secured by the constitution of this state, and can not be taken away by the legislature.</p> <p>The law in reference to an examination applicable to other cases of misdemeanor, is alike applicable to offences for selling intoxicating liquor contrary to the provisions of the act “ to prevent intemperance, pauperism and crime,” passed April 9, 1855.</p> <p>A person charged with the offence of selling intoxicating liquor contrary to the provisions of that act, has the right to give bail to appear and answer at the next criminal court having cognizance of the offence, and in which he may be indicted, as in other misdemeanors triable by a Court of Special Sessions.</p>

The plaintiff in error, was indicted in the Court of Sessions of Erie county, and charged with having sold intoxicating liquor in small quantities… Held: that applied to his master’s wife. Croke, J., saying: “ Notwithstanding that a statute which increases a punishment beyond what it was at the common law, ought,not to be extended by an equitable construction, yet the words of such statute ought to be construed according to the intention of the makers of the statute.

The defendant was arrested without a warrant by John Matthews, the complainant, a police officer, under the twelfth section of the act entitled “ an act for the prevention of intemperance, pauperism and crime,” passed 9th April, 1855, for selling in his presence, a glass of brandy and a bottle of champagne, who seized the said liquors together with the vessels in which they were contained.

<p>A grand jury has full power to make inquiry and to present hy indictment, all persons charged with crime, whether such persons are or are not under arrest and examination before any of the magistrates of the county.</p> <p>It is no good reason for quashing an indictment, that at the time it was found, the defendants were under arrest on a warrant issued by the coroner, after an inquisition found by a coroner’s jury implicating the defendants in the crime, and that the preliminary examination before the 'coroner had not been brought to a close.</p> <p>Where a coroner’s jury finds that a murder has been committed and the coroner binds over the witnesses to appear at the next criminal court at which an indictment can be found, it is the duty of the grand jury to proceed at once to act upon the case without reference to the facts whether the accused is in custody or whether hé is then under examination before the coroner.</p>

<p>On a motion to admit to bail, on an indictment for murder, upon the testimony taken before the coroner and before the grand jury, the defendants •will not be permitted to furnish further, proof, either by affidavits or oral testimony, tending to establish their innocence.</p> <p>The court in all cases, capital or otherwise, exercises its discretionary powers to admit to bail, when upon examination of the testimony under which the accused is held, the presumption of guilt is not strong; and the court is particularly called upon to bail in all cases, where the presumptions are .decidedly in favor of the innocence of the accused.</p> <p>A grand jury ought not to find an indictment, unless the testimony against the accused, ex parte and unexplained, is sufficient to convict.</p>

The defendants were jointly indicted for riot, committed in the ninth ward of the city of New York, on the 4th day of July, 1853; the defendants pleaded not guilty; and on the 14th day of December, 1853, the issue of traverse so joined, came on to be tried before Hon. Francis Tillou, recorder, &c., the defendants being tried jointly.

Writ of error to the Saratoga county Sessions. The plaintiff in error was indicted with two others for burglary, in breaking and entering the grocery of one Hall in the night time with intent, &c. He was tried on the indictment at the Saratoga Sessions held in March last, and convicted.

The prisoner was indicted at the Saratoga Oyer and Termi-' ner, held in October, 1853, for burglary in the third degree, and the indictment sent down to the General Sessions for trial. On the trial in the Sessions, the clerk in impanneling the jury drew from the box the name of Thomas L. Gleason, who answered to the call. To this person sitting as a juryman, the district attorney on behalf of the prosecution interposed a peremptory challenge.

This was a writ of error to the Saratoga Oyer and Terminer, in which court the defendants were tried on the following indictment: Saratoga County, ss.

The plaintiff in error was convicted of the murder of his wife at the court of Oyer and Terminer for the comity of Erie, on the 15th day of December, 1852. A bill of exceptions was taken on the trial, and the presiding judge of the Oyer and Terminer having made a certificate of probable cause, the proceedings were removed into the Supreme Court by certiorari, where judgment was rendered in favor of the people, and th,. prisoner was sentenced to be executed.

This was a writ of error to the Rensselaer Oyer and Terminer. The prisoner was charged with the murder of Elizabeth McMahon, his wife. Held: upon which the prisoner was sworn as a witness. The testimony given by the prisoner before the coroner’s inquest was proved on the trial,* without objection, by the evidence of Doct. Reed B. Bontecou, the coroner.

This was an action on a recognizance, taken by a justice of the peace, before indictment, for the appearance of one Smith at the June Oyer and Terminer in the county of Dutchess. On the trial, the plaintiff called the county clerk as a witness, who testified that there was a court of Sessions, with a grand jury, between the taking of the recognizance and the June Oyer and Terminer.

This was a writ of error to the Jefferson county Sessions. The plaintiff in error was indicted in the court of Sessions of Jefferson county, for the crime of arson in the third degree. At the February term of that court (1853,) a jury was impanneled for the trial of the indictment upon the plea of not guilty, and evidence given of the offence and of circumstances tending to establish the guilt of the accused.