Volume 3 — Parker's Criminal Reports

<p>The word “ heer,” in its ordinary sense, denotes a beverage which is intoxicating, and is within the meaning of the words “ strong and spiritous liquors,” as used in the Revised Statutes.</p> <p>Where the indictment charged the sale of “ strong and spiritous liquors ” without license, and, among other liquors, “ one pint of strong heer," and the proof, without further explanation, was, that the defendant sold “ Dutch heer," it was held that the variance was immaterial.</p>

<p>The plaintiff in error was indicted in the Court of General</p> <p>Sessions of the city of New-York for rape.</p>

<p>The act of April 2, 1850, regulating the police of the town of Watervliet, so far as it takes away from a person charged with an offence the right to give bail for his appearance at the next criminal court having jurisdiction, is an infringement of the right of trial by jury and is unconstitutional and void.</p>

Martin Eastwood was tried and found guilty of the murder of Edward Brereton, at the Monroe Oyer and Terminer, in May, 1855, before Welles, justice of the Supreme Court, and the justices of the sessions.

This cause came before the Supreme Court on a writ of error to the General Sessions of New-York, which was as follows: The People of the State of New-York to the Court of r General Sessions of the Peace, held in and for the I L SI L city and county of New-York, Greeting: Because, in the record and proceedings, and also in the giving of judgment in a certain cause which was in our said court before you, between The People of the State of New-York and Charles A. Peverelly, who…

This cause came up on certiorari to a court of special sessions.

The prisoner was indicted for perjury, and, on being arraigned, a motion was made, on his behalf, to quash the indictment, upon the ground that the grand jury that found the indictment was drawn from a list of only two hundred and ninety-nine grand jurors, the board of supervisors of the county having prepared a list containing the names of only two hundred and ninety-nine persons, instead of three hundred, to serve as grand jurors, pursuant to the provisions of section one…

The defendants were jointly indicted, at the October term of the Suffolk circuit, 1854, for a violation of the fifteenth and sixteenth sections of the statute entitled “ Of excise, and the regulation of tavern and groceries.” The indictment was remitted for trial to the Court of Sessions of Suffolk county.

<p>The question whether a former trial and conviction for abduction are a bar to an indictment subsequently found for murder alleged to have been previously committed, cannot be raised and made a ground for discharge on habeas corpus. Such defence can only be made available, if at all, on the trial of the indictment for murder.</p>

The defendant, together with Giottleib. Milhelm and Anthony Foist, was indicted for grand larceny in stealing eight cows, the property of William Beaty and Lewis Morris. They pleaded severally not guilty, and the defendant demanded a separate ‘trial. He was accordingly tried separately, on the 18th June, 1855, before the Hon. John W. Mills, county judge, and the justices of the sessions.

This cause was brought up on a writ of certiorari, of which the following is a copy. The People of the State of New-York, to the judges of the Court of General.

This was a writ of error to the court of Sessions of Livingston County. The plaintiff in error was indicted in the Sessions in March 1854, for arson of a barn, in the night time. He was tried upon the indictment in the same court in September following, when he was convicted, and adjudged to be imprisoned in the State prison at Auburn for the term of seven years and six months.

<p>The trial of a criminal case will he postponed on the application of the defendant, on the general affidavit of the absence of material witnesses, unless it is apparent that the application is made merely for the purpose of delay; in which case an affidavit will be required showing the nature of the defence intended to be sustained by the absent witnesses, that the court may judge of their materiality.</p> <p>Where an application was made to postpone the trial of an indictment for murder, and it was claimed by the District Attorney, and was not controverted by the defence, that no living person except the prisoner was present at the alleged murder, and there was no pretence of an alibi, such' general affidavit was held to be insufficient, and the prisoner was required to disclose what defence he expected to establish by the evidence of the absent witnesses.</p> <p>Trials in criminal cases will not usually be postponed on account of the absence of witnesses to character.</p> <p>Where an application was made to postpone the trial of an indictment for murder, to enable the defendant to procure witnesses to character, and the District Attorney, in opposing the motion, offered to admit the previously good general character of the prisoner-, the motion was denied on the making of such admission.</p> <p>On the trial of an indictment for murder, a juror was challenged by the District Attorney, for principal cause, on the allegation that he was opposed to capital punishments; on being sworn, the juror testified that he was opposed to the punishment of death, but said that if sworn as a juror on a trial for murder, and the evidence of guilt was clear, he should find the accused guilty; held, that the challenge was'not sustained.</p> <p>Where a challenge for principal cause, in such a case, had been made and tried, and the juror had been decided to be competent, it was held that the trial of the challenge might be opened, even after the juror had been sworn and taken his seat, and other jurors had been called, but before evidence in the cause had been taken, if it appeared that the juror had misunderstood the question put to him, and had given a wrong answer, and that the juror desired to make the correction and to say that he could not, under any circumstances, convict on a charge of murder; and where, on resuming the trial of a challenge under such circumstances, the juror repeated such correction, the challenge was held well taken, and the juror was set aside.</p> <p>On a trial before the Oyer and Terminer, in the county of Westchester, it appeared that the alleged murder had been perpetrated on board a vessel lying at anchor on Long Island Sound, about a quarter of a mile west of Hartt Island, and northerly of a line connecting the extreme points of Hartt and City Island; held, that the offence was committed within the county of Westchester.</p> <p>Every part of the State of New-York is included within some one of the counties enumerated in the statute.</p> <p>Where a body of water, in which the tide ebbs and flows, is situated between a range of islands and the main shore, and all are so near to each other that a person with the ordinary power of vision can see with the naked eye, from point to point, on every part of the connecting line, what is doing on each, it is within the county bounded upon the high seas, according to the rule which extends the jurisdiction of a county to a line running from one to the other of the fauces terree.</p> <p>When a brother-in-law of the deceased was called to show that, five months after the alleged murder, he saw and examined a body which was found, and was claimed to be the body of the deceased, and proceeded to testify to several points of resemblance between the body found and the person charged to have been murdered, and was then asked by the counsel for the prosecution, whether, in his opinion, it was the body of the person alleged to have been murdered, it was held, that the question was incompetent, and that it was the province of the jury, and not of the witness, to draw the conclusion from the points of resemblance, and to decide upon the identity of the body found, it appearing that the body found had been much decomposed and changed, and that all the remaining points of resemblance had been stated by the witness to the jury.</p> <p>Ordinarily, there can be no conviction for murder until the body of the deceased is discovered; held, that the circumstances of this case formed no exception to the rule.</p>

This was a writ of error to the Chenango Oyer and Terminer, where the prisoner was convicted of burglary in the second degree. The facts are sufficiently stated in the opinion of the court.

On the 16fch of August, 1856, on the petition of Peter W. Roff, alleging that he was then illegally restrained of his liberty, and imprisoned in the common jail of Richmond county, a writ of habeas corpus to the keeper of the jail was allowed, returnable on the eighteenth. The writ was then returned, and the prisoner brought up.

This was a certiorari to the court of sessions of Genesee county.

The defendant was indicted for a violation of the excise laws. The indictment contained numerous counts, which were generally framed under the Revised Statutes relating to excise and the regulation of taverns and groceries. All the counts charged the sale of spiritous liquors without license, and some'of the counts alleged the sale in'quantities less than five gallons. The defendant demurred.

The writ of certiorari was in the following form : The People of the State of New-York, to the Court of Sessions, in and for the County of Monroe, Greeting: We, having been informed that Abram Adler, of said county, was lately in the said Court of Sessions tried and convicted of the crime of assault and battery, upon an indictment theretofore found against the said Abram Adler; and that, upon the said trial of the said indictment, exceptions to certain decisions of said…

The defendant had been indicted for the murder of his wife, and, upon being arraigned, had pleaded not guilty to the indictment. The issue was tried at the Albany Oyer and Terminer, in November, 1856, before Mr. Justice Gould and the associate justices.

On the 6th day of January, 1857, at the city of Buffalo, on the petition of the defendant, a writ of habeas corpus was allowed by the said justice, directed to the sheriff of the county of Erie, commanding him to have the body of the defendant, with the time and • cause of the defendant’s imprisonment, before said justice at the old court-house in said city, on the eighth day of said month.

The defendant was indicted for an assault and battery, alleged to have been committed on one Thomas Elliott, and pleaded not guilty. The indictment was tried at the Westchester sessions, where the defendant was convicted.

Writ of error to the Tioga County Sessions. The defendant was indicted for petit larceny, charged as a second offence. The indictment contained a general averment that the Court of Special Sessions, before which the defendant had been convicted, had jurisdiction, but omitted to state the particular facts showing jurisdiction. On demurrer to the indictment, judgment was given in favor of the defendant, and the people brought error to this court.

. The prisoner was indicted, tried and convicted, in the New-York General Sessions, for receiving a saddle, bridle and bits, the property of Baltis M; Segee, knowing the same to have been stolen. The questions raised on the trial, and the exceptions taken by the prisoner’s counsel, sufficiently appear in the points made on argument, and in the opinion of the court.

The defendant, at an adjourned session of the Albany Oyer and Terminer, held in November, 1856, was tried and convicted of murder, before Mr. Justice Gould and the associate justices. No exceptions were taken upon the trial.

The prisoner had been indicted for peijury, alleged to have been committed in the County Court of Lewis county on the naturalization of James Catillay.

This was a certiorari to the Court of Sessions of Kings county, in which the prisoner had been convicted of manslaughter in the first degree.

The prisoner was arrested and brought before a justice of the peace, charged with having been found intoxicated in the public streets. His counsel claimed the right to give bail, and presented a recognizance with two sufficient sureties conditioned for his appearance at the next Onondaga Court of Sessions. The justice held' that the statute required that the offence should be summarily disposed of, and refused to take bail.

This was a certiorari to the Kings Oyer and Terminer, in which court the prisoner had been convicted, before S. B. Strong, one of the justices of this court, and Samuel D. Morris, county judge, and the justices of the Sessions.

<p>Direct evidence is not, in all cases, indispensable for the purpose of proving the corpus delicti, on a trial for murder. Balcom, J., dissenting. The dictun of Lord Hale, in 2 Sale P. 0., 290, in which a contrary opinion is expressed, discussed and disapproved.</p> <p>Where, on a trial for murder, there is no direct evidence of the corpus delicti, and it is evident that none can be adduced, the corpus delicti may be proved by circumstantial evidence, when it is so strong and intense as to produce the full certainty of death; but the death can be inferred, in such case, only from such strong and unequivocal circumstances as render it morally certain, and leave no ground for reasonable doubt. Balcom, J., dissenting.</p> <p>The cases bearing on this point reviewed, and the rules and principles of circumstantial evidence discussed.</p> <p>On the trial of an indictment for murder, the law, in its clemency, presumes the entire innocence of the prisoner; 'and the government, before it has a right to ask for a conviction, is bound, not only to prove the alleged murder, but is required also to establish by evidence the guilt of the prisoner beyond a reasonable doubt. Per Mason, J.</p> <p>The corpus delicti is made up of two things: First. The fact that a human being has been killed; and Secondly. The .existence of criminal and human agency as to the cause of the death. Per Mason, J.</p> <p>In proving the confessions of a prisoner, it is required that all the confessions be taken together, as well that which makes for the prisoner as that which makes against him; but it is not necessary to adopt the whole confession, where other evidence in the case proves part of the confession to be untrue. Per Mason, J.</p> <p>Confessions of a prisoner are a doubtful species of evidence, anti.' should be received with great caution. Per Mason, J.</p> <p>No man can be convicted of a criminal offence upon his own confession alone that a crime has been committed; confessions are competent evidence in the case, but alone are not sufficient. Per Mason, J.</p> <p>Charge of Judge Mason, on the trial at the circuit, of an indictment for murder.</p> <p>Form of an indictment for the murder of an infant child, whose name and the manner of whose death were unknown, with counts in various forms to meet the circumstantial evidence on which the prosecution relied to prove the corpus delicti.</p> <p>Where an impartial jury cannot be obtained in the county in which the indictment is found, the place of trial can be changed only by removing the indictment into the Supreme Court by certiorari, and then moving the Supreme Court to change the place of trial to some other county.</p> <p>Perm of a writ of certiorari to remove an indictment before trial from the Oyer and Terminer to the Supreme Court.</p> <p>Where an indictment has been removed into the Supreme Court by certiorari, before trial, it must be tried at a Circuit Court, like other issues pending in the Supreme Court, and not at the Oyer and Terminer-</p>

This was a certiorari to the county judge of Westchester county to review his decision, upon a habeas corpus, refusing to discharge the defendants from the custody of the sheriff of that county.

This was a writ of error to the Court of General Sessions for the city and county of New-York. On the 13th of April, 1856, the prisoner, who had been indicted for burglary, was arraigned and pleaded guilty, and was sentenced, by the recorder, to five years’ imprisonment in the state prison. Before the sentence was entered upon the records of the court, the prisoner was permitted to withdraw his plea of guilty, and to put in a plea of not guilty.

This was a writ of error to the Court of General Sessions of the city and county of Hew-York. The defendants, with one Wilson, were indicted for feloniously receiving and having stolen property, with counts against some of them as accessories.

This was a motion for a mandamus. The relator, on the seventeenth of June, presented to the commissioners of excise his application for a tavern license in due form, and tendered the amount required to be paid for such license. The commissioners refused to receive the application, on the ground that the time for presenting applications had expired. The relator moved for a mandamus to compel the commissioners to receive -the application and grant him a license.

The prisoner was tried on an indictment which charged him with killing Timothy Raudon, at Ithaca, on the 5th day of November, 1854, without the authority of law, by poison called arsenic.

The defendant was tried on an indictment which charged him with peijury, in swearing to an affidavit in October, 1856. The evidence was conflicting, and the case was submitted to the jury under a charge from the court to which the defendant’s counsel did not except, and the jury found the defendant guilty. The defendant’s counsel applied for a new trial on the ground that the evidence was insufficient to sustain the verdict of the jury, and was against evidence.

This cause came before Mr. Justice Peabody, at chambers, on habeas corpus, issued on the application of the defendant, for the purpose of having the defendant admitted to bail. The facts are fully stated in the opinion of the judge.

<p>This matter came up on certiorari, directed to Mr. Justice Peabody.</p>

Complaint was made on oath to the justice of the peace tliat Warren is a disorderly person within the intent and meaning of chapter eighty-six, section fourteen of the Session Laws of 1855, and the Revised Statutes; for, that Warren, on the 12th day of December, 1856, and on divers other days before and since that date, in, &c., did and does keep a bawdy-house, or house for the resort of prostitutes, drunkards, tipplers, gamesters and other disorderly persons, and did make a…

The indictment in this case charged the defendant with burglary in the second degree, in breaking and entering the dwelling-house of one John Wood, on the 18th of May, 1857, by breaking an outer door, and stealing one pair of pantaloons of the value of six dollars.

” The defendant’s counsel claimed that the verdict was not warranted by the evidence. He also insisted that the indictment was defective and insufficient, because it did not show the number and denomination of the hank bills that were stolen from Dickinson, or the amount secured thereby and remaining unsatisfied thereon, or the number, size and description of the pieces of silver coin that were stolen from him.

<p>A conviction for misdemeanor, before a Court of Special Sessions, cannot be reviewed on a return to a writ of habeas corpus.</p> <p>Where it appears, by a return to a writ of habeas corpus, that the prisoner in whose behalf it was sued out is detained by virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction, it is the duty of the officer before whom the writ is returned forthwith to remand the prisoner.</p> <p>Where a statute prohibits an act which is not criminal at common law, and imposes a civil penalty for its commission, the act is not indictable; but ifj at the time of the enacting of the statute, it was already prohibited by a former statute, and the statute imposing the penalty contains provisions showing that the legislature did not intend that the civil penalty should constitute the only punishment, it may, in addition to the penalty, be also punished as a misdemeanor.</p> <p>Selling liquor without a license is an indictable offence, and punishable as a misdemeanor, under the act of April 16,1857, entitled “ An act to suppress intemperance, and to regulate the sale of intoxicating liquors.”</p>

The plaintiff in error was indicted in the Court of General Sessions for manslaughter in the second degree, under part four, chapter one, title two, article one, section nine of the Revised Statutes, with a count for a misdemeanor under section two, article nine, title three of the same chapter.

The defendant was indicted in November, 1856, for the larceny of pig iron. He was tried in the Oyer and Terminer, in December, 1856, and acquitted. He was immediately indicted for embezzling and converting to his own use, without the consent of the owner, certain pig iron. Also a count for secreting and making way with, with intent then and there to embezzle and convert to his own use, the said personal property.

Complaint was made on oath to the justice, that Plato was a disorderly person within the intent and meaning of chapter eighty-six, section fourteen of the Laws of T855, and the Revised Statutes; for that Plato, on the 18th day of July, 1856, in, &c., made a noise and disturbance of the public peace, and did quarrel and fight in a public place, and in view from a public place in said village (Niagara City), to wit, at, &c. The justice issued his warrant, in which the…

The prisoner was indicted for grand larceny, in stealing the goods of J. Scheuer, and pleaded not guilty. He was tried upon the indictment on the 17th day of November, 1856, before the recorder of said city and a jury.

This cause came before this court on certiorari to review the proceedings had before the recorder of New-York, on habeas corpus.

<p>At common law, all warrants in criminal proceedings are required to he under the hand and seal of the magistrate who issued them. Certain statutory-exceptions stated by Rosekrahs, J.</p> <p>A search warrant, not under seal, is void, and affords no protection to an officer attempting to execute it.</p> <p>Nor can a search warrant be sustained as valid when directed to “ any constable ” of the county in which the search is directed to be made, the statute requiring all search warrants to be directed “to the sheriff of the county, or to any constable or marshal of the town or city ” in which the stolen property is alleged to be secreted.</p> <p>The place to be searched must be particularly designated in the search warrant. Where a part of the complaint .was recited in the warrant, in which it was stated that the complainant suspected the stolen property was concealed in the stable of O. P., on the east side of the canal, in the village of Whitehall, in said county, known as the “ red barn,” and then the warrant gave direction to search the places where said property was suspected to be concealed, it was held insufficient, for the reason that though the place mentioned in the complaint was sufficiently designated, the direction given in the warrant was too general, and authorized the search of any suspected place, instead of confining the search to the place so suspected by the complainant.</p> <p>Whether a search warrant can be executed, or afford protection to an officer, where it shows upon its face that the party who has the property alleged to be stolen is charged with the larceny of it, and no warrant for his arrest accompanies, or is incorporated in the search warrant, quere?</p> <p>Form of an indictment for an assault and battery committed on an officer while engaged in the execution of his office, with a count for riotously and routously resisting the execution of process, and a count for resisting the execution of a search warrant under the Act of 1845 ( ch. 69, § 17.)</p>

The prisoner had been indicted for the murder of Charles W. Littles. At the trial, a question of evidence arose which was considered and decided in the following opinion. The circumstances under which the question arose are fully stated in the opinion of the majority of the court.

The prisoner had been convicted of murder at the Livingston Oyer and Terminer, and sentenced to be executed, and an application was made in his behalf for the allowance of a writ of error, and a stay of the execution of the judgment.