Volume 5 — Parker's Criminal Reports

Motion by the District Attorney of Otsego county, to dismiss writ of error, and strike the bill of exceptions from, the return or record in this cause. The prisoner was convicted of forgery in the second degree, and sentenced to the state prison at Auburn, for the term of six years, at a Court of Oyer and Terminer, held in Otsego county, on the first day .of July, 1859.

This case came up on writ of error to the Court of Oyer and Terminer of Ontario county.

The defendant was indicted for an assault and battery upon his wife, Sarah Fitzpatrick, with intent to kill her.

This was a writ of error to the Court of Sessions of Otsego county. Held: the said knife being a deadly weapon, willfully, maliciously and feloniously, did beat, strike, cut and wound, with intent him, the said Eichard Allanson, then and there willfully and feloniously, to kill, and other wrongs to the said Eichard Allanson, then and there did to the great damage of the said Eichard Allanson against the…

The defendant was indicted for manslaughter in causing the . death of one Tiberius Gr. French. The evidence showed that the defendant was a physician of what was called the Thompsonian school, and that the death of French was caused by improper medical treatment, and particularly in the immoderate use of lobelia (known as Indian tobacco), and of the steam bath.

The defendant was indicted for burglary in the third degree, for breaking and entering, with felonious intent, a room in the basement of the court house in Utica, used by the “ Gulf Brewery for storing of beer. The.entry into the basement was through an open window into a room used for county purposes, and thence into the room occupied by the “ Gulf Brewery,” by breaking a lock fastening and door leading from that room..

On the seventeenth day of May, 1860, the defendant, Van Keuren, was tried in the Mew York General Sessions, on an indictment, charging him, in conjunction with one Walters, with having in his possession, in the city of Mew York, with intent to pass, a one dollar bill of the bank of Morfolk, Connecticut.

The prisoner was brought up on a writ of habeas corpus, and the grounds on which he claimed to be discharged are sufficiently stated in the opinion of the court.

Peter J. Dempsey pleaded guilty, in the Court of Sessions' of Kings county, to an indictment for assault and battery, and was thereupon séntenced to imprisonment for six months in the penitentiary of said county. A writ of error was sued out, and the case removed to the Supreme Court, on the claim that there was no authority to imprison in the penitentiary,' under ch. 110 of the Laws of 1853.

This case came up on writ of error to the New York General Sessions.

This case came before the court on a writ of error to the Court of Sessions of Monroe county. The first count of the indictment against the plaintiff in error, was as follows: State of New York, Monroe County, ss.

<p>On the trial of a prisoner for attempting to discharge a pistol with the intent to kill, &c., under 2 JR. S., 665, § 36, the prisoner’s counsel requested the judge to charge “ that the pointing of an uncocked Colt’s revolver at a person is not an attempt to discharge the weapon,” and the judge refused so to charge, and charged that it was a question of fact for the jury to decide, and not a question'of law for the decision of the court; Held, that the ruling of the judge was erroneous, and the prisoner, having been convicted, the judgment was reversed on writ 6f error, and a new trial ordered.</p> <p>A conviction for an attempt to discharge a pistol, under the statute referred to, cannot be had, where the individual indicted proceeded no farther toward an actual discharge or shooting than to raise and point the pistol, uncocked, at the party threatened.</p> <p>A threat made by the prisoner at the time would constitute no part of the attempt to discharge the pistol; it would only be evidence of the intention of the prisoner.</p>

The relator obtained a writ of habeas corpus, and asked for the discharge of William Allen, who enlisted in August, 1861, in the regiment of which respondent is lieutenant-colonel, and was subsequently mustered into the United States service. It was alleged in the petition that Allen was between the age of eighteen and twenty-one years.

This was a writ of error to the Court of Sessions of the county of Kings. The return contained an extract from the minutes kept by the clerk, showing that on the 10th December, 1858, the prisoner was arraigned for an assault and battery, with an intent to kill, and pleaded not guilty.

An indictment had been found against James W. Wixson, Henry Lee and Lester Lockwood, containing three counts. The first was for burglary, the second for larceny, and the third for receiving stolen goods, knowing them to be stolen. Wixson and Lee demanded to be tried separately from Lockwood, but consented to be tried together. The trial accordingly proceeded against Wixson and Lee.

The prisoner was indicted, tried and convicted in that court for selling intoxicating liquors, as an inn, tavern or hotel keeper, in the town of Gwego, on Sunday, in the year 1859, contrary to section 21 of 'An act to suppress intemperance and to regulate the sale of intoxicating liquors,” passed April 16, 1857. {Laws of 1857, vol. 2, p. 413; 2 B. 5th ed., 944.) The prisoner took exceptions, which were removed into this court by certiorari, sentence being stayed.

An indictment was found in the Court of Sessions of Ontario county, of which the following is a copy: /State of New Yorh, Ontario County, ss: The jurors for the People of the State of New York, and for the body of the county of Ontario, to wit: Jonas M. Wheeler, &c., being sworn and charged to inquire for the People of the said State, and for the body of the county aforesaid, upon their oath, present that John C. Weed, Alanson E. Simmons and Judson H. Graves, late of the…

■ Jambs Sully was indicted at the Erie Oyer and Terminer for feloniously obtaining property by false pretenses.

This case came up on certiorari from the Court of Sessions of Livingston county, where the defendant was tried on the following indictment: State of New York, County of Livingston, ss: The jurors of the People of the State of New York, in and for the body of the county of Livingston aforesaid, upon their' oath aforesaid, present, that John Cramer, late of the town of North Dansville, in the county aforesaid, on the tenth day of March, in the year of oUr Lord one thousand…

<p>Where, in an indictment for forgery, the counterfeit note, which it is charged the prisoner had in his possession, is set forth in hao verba, it is unnecessary to allege, in addition, that the note purported to he the act of another.</p> <p>On the trial of an indictment for forgery, the counterfeit note offered in evidence had upon its face the words, “ Countersigned and registered in the Bank Department,” and the signature of the register, “A. D. Ward.” No such certificate or signature appeared on the note set forth in the indictment. It was held to he no variance.</p> <p>This case came before the court on a writ of error to the ¡New York General Sessions. The questions raised on the trial are sufficiently stated in the opinion of the court</p>

This case comes before the court on certiorari. The plaintiff in error was tried and convicted on the 15th of March, 1861, in the Hew York General Sessions, upon an indictment charging him with the seduction, under promise of marriage, of one Ann Donnelly. The .prosecutrix was called as a witness on the trial, and testified, among other things, that she had never had any sexual intercourse with any other person than the defendant.

This was an action for false imprisonment. The defendant, who was a justice of the peace, justified under proceedings before him as a Court of Special Sessions. The action was tried at the Dutchess Circuit.

' This case came before this court on a certiorari to the Court of Sessions of the county of Genesee. On the trial in that court, the defendant objected that the indictment, which was for an unlawful and willful neglect to erect and maintain fences on the sides of the road, contained no averment that it was the duty of the defendant to erect and maintain such fences.

This was a writ of error to the Court of General Sessions of the city and county of New York, in which court the prisoner had been convicted of arson in the third degree, under an indictment charging arson in the first degree. The questions raised on the trial sufficiently appear in the opinion of the court.

<p>Eorm of an indictment for the crime against nature.</p> <p>The allegation that the defendant 11 had a venereal affair ” is not indispensable in an indictment for the crime against nature. The omission may be supplied by an allegation of “carnal knowledge." or some other equivalent allegation.</p> <p>In empanneling a jury for the trial of a felony, at the Oyer and Terminer in the county'of Kings, it is not erroneous for the court, after failing to get a jury ■ from the thirty-six jurors summoned for the first six days of the court, under the special act of April IT, 1858, applicable to that county, to refuse to summon talesmen, and to proceed to complete the jury from the thirty-six jurors summoned for the next six days of the court.</p>

This case -came up on a writ of error to the Court of Sessions of Madison county. The plaintiff in error had been indicted in that court for a violation of the provisions of the statute (2 i?../S'.,'288), which forbids the buying of demands for the purpose of prosecution. He pleaded that he received the note, &c., without any intent to prosecute it in a court of record. The public prosecutor demurred, because it did not deny an intent of prosecuting it in a justice’s court.

<p>The provisions of the act of April 14, 1860, entitled “An act in relation to capital punishment, and to provide for the more certain punishment of the crime of murder,” so far as they apply to offenses committed before the act took effect, are ea post facto, and, therefore, unconstitutional and void.</p> <p>Where a conviction had taken place under that act, for an offense committed before the act took effect, and sentence had been pronounced by the Court of Oyer and Terminer, in pursuance of the provisions of the act, no bill of exceptions having been returned with the record, and the only error committed having been in the giving of judgment, it was held, on reversing the judgment, that this court had no power to order a new trial, but that the prisoner must be discharged.</p> <p>To grant a new trial, in such a case, would be a violation of the constitutional provision which protects the prisoner from “being twice put in jeopardy for the same offense,” and on the second trial the plea of autrefois convict would be a good defense.</p>

The prisoners were brought into court and asked to plead to an indictment in the words and figures following, viz.: “In the Broome Comity Court of Oyer and Terminer, 'of the.

The defendant was indicted at the Oyer and Terminer, in May, 1862, for false pretenses, alleged in the indictment to have been made at Canajoharie in 1850.

The prisoner was indicted for the murder of Paul O’Neil, and pleaded not guilty. The issue came • on for trial at the Kings Oyer and Terminer, in April, 1862, before Mr. Justice Lott and the Justices of the Sessions. The prisoner was a police officer, and had arrested the deceased without warrant, and shot at him and killed him, at the time he was escaping from his custody.

The defendant was tried at the Onondaga county Oyer and Terminer, in June, 1862 — Justice Mullin presiding. The indictment contained seven counts: the first two for arson in the first degree; the third, fourth and fifth for arson in the second degree; and the sixth and seventh for arson in the third degree. On the trial, the second, fifth, sixth and seventh counts were disposed of by the court, or abandoned by the district attorney.

• The defendant was indicted for seduction under a promise of marriage.

<p>An order for the delivery of goods, though not on its face addressed to any person, is the subject of forgery. It is sufficient if the order is of such a character that a person can, by the use of it, be deprived of property.</p> <p>Where, in an indictment for forging an order, it was charged that the prisoner’s intent was to defraud the “Meriden Cutlery Company, and divers other persons to the jury unknown,” it was held not to be erroneous for the court tb refuse to charge the jury that the Meriden Cutlery Company could not be regarded as the subject of fraud.</p> <p>Nor was it erronéous in the court to refuse to charge the jury that, if the grand jury knew, at the finding of the indictment, whom the prisoner intended to defraud, he could not be convicted of an intent to defraud persons unknown, where no evidence whatever had been given to show that the grand jury had any knowledge of that kind.</p>

-The prisoner pleaded not guilty, and was tried at a Court of Sessions held in the county of Kings, in March, 1862, before the County Judge and the Justices of the Sessions.

The prisoner was tried in the Court of Sessions of Kings county, in May, 1862, on an indictment which charged him with having committed a rape on the body of Mary Anderson, a plea of “ not guilty ” having been interposed to the indictment.

The defendant had been tried and convicted, before a Court of Special Sessions in the city of New York, of an offense under the statute (ch. 467 of the Laws of 1862). The conviction was brought before this court for review, and the facts are sufficiently stated in the opinion of the court.

<p>On the trial of an indictment for having in possession a counterfeit bank note, with the intention of passing it, it is no defense that the bank note is not set forth in the indictment, and that no reason for omitting to set it forth is assigned in the indictment.</p> <p>When a request to charge contains two propositions, one of which is right and the other wrong, it is not error in the court to refuse to charge as requested.</p>

This case came up on a writ of error to the New York General Sessions, where the prisoner was convicted of larceny. The questions arising on the trial are sufficiently set forth in the points made by counsel, and in the opinion of the court. I. The court erred in admitting officer Clark’s evidence of the finding of the (stolen) watch, in consequence of what the prisoner had said to him about it, after arrest, under promise of favor. II.

The prisoner was indicted for feloniously receiving stolen goods. Held: that although there was no special averment that the bank was incorporated, but being necessary to show that it was a corporation, the charter or act of incorporation could be given in evidence, which was done.

This case came before the court on a writ of error. By the return, it appeared that an indictment in the following form} was found in the New York General Sessions, against the plaintiff in error: “ City and County of New York, ss : The jurors of the People of the State of New York, in and for the body of the city and county, of New York, upon their oath present: That George B. Clements, late • of the first ward of the city of New York, in the county of New York aforesaid,…

An indictment was found against the prisoner, in the following form: “ City and County of New Yorlc, ss: The jurors of the People of the… Held: into her, the said Mary Ann, and into and upon the womb of her, the said Mary Ann, did feloniously thrust, push and press, and did then and there willfully and feloniously use and employ the said instrument upon the said Mary Ann, in manner aforesaid, with intent feloniously to destroy the said quick child, the same not then and…

The prisoner was indicted for having feloniously received fifty yards of muslin, stolen by Robert Thompson from Thomas C. M. Patón, knowing the property to have been stolen. A plea of not guilty was put in, and the' issue was tried before McCunn, city judge, at a Court of General Sessions held in the city of New York on the 27th November, 1861. On the trial, the district attorney called Robert Thompson as a witness.

The following indictment was presented against the prisoner : Gity and Gounty of New York, ss: The jurors of the People of the State of New York, in and for the body of the city and county of New… Held: that an indictment on this section or clause should state the precise number of persons entertained, and should negative that they were travelers, &c. (Commonwealth v. William Maxwell, 2 Pick. B., 139.)

The prisoner was indicted at the February term of the Madison Oyer and Terminer, 1861, for the murder of Calvin Burton, in the town of Sullivan in the county of Madison, on the 29th day of December, 1860, and was arraigned and pleaded not guilty. He was tried at the Madison County Oyer and Terminer, on the 7th day of April, 1862, before Mr. Justice Mason and Sidney T. Holmes, county judge, and the justices of the Sessions.

<p>Motion to quash an indictment. The question involved is fully stated in the opinion of the court.</p>

The defendant was indicted, charged with having, on the 31st day of January, 1862, at the city of New York, stolen certain moneys, &c., to an amount exceeding twenty-five dollars, from the person of… Held: in Williams v. The People (24 N. Y. R., 405), that a charge precisely like the one excepted to in the case at bar, was erroneous, and granted a new trial on that ground.

This case came up on certiorari to a Court of Special Ses1 sions.

The plaintiff in error was tried in the Hew York General Sessions in December, 1861, for the murder of one Lee, on the 5th of August of that year. The prisoner was barkeeper for Louis Bleyart, at a liquor store kept by him. on the corner of West and Morris streets, in the city of ISTew York. The deceased, in company with several others, came to Bleyart’s place, and had several glasses of liquor, when a difficulty arose in regard to paying for them.

•This case comes before the court on writ of error, in the following form : ' The People of the State of New York, to the Court of… Held: him, the said Samuel Hoffman, in and upon the chest, then and there willfully, deliberately, premeditatedly, feloniously and of his malice aforethought, did strike, beat, stab, cut and wound, giving unto the said Samuel Hoffman then and there, with the sword aforesaid, in and upon the chest of him, the said Samuel Hoffman, one mortal…

<p>On certiorari to the city judge of the city of New York,, the following return was made:</p> <p> To the Honorable the Justices of the Supreme Court of the State of New York for the First Judicial District : </p> <p>In compliance with the within writ of certiorari to me directed, I do hereby certify and return to your honorable court that the papers hereto annexed, and marked respectively “ A,” “B,” “ b,” and “ 0,” are copies of all proceedings had before me in the within entitled matter, the originals of which are on file in the office of the warden of the city prison of the city of New York.</p> <p>JOHN H. McCUNN, Cüy Judge. ’ Dated New York, April 27th, 1863.</p> <p>NEW YORK SUPREME COURT.</p> <p>In the matter of The People of the State of New York. v.</p> <p>Louisa Nash.</p> <p> City and County of New York, ss: </p> <p>A. Oakey Hall, district attorney of the city and county of New York, being duly sworn, deposeth and saith, that he</p> <p>the great seal of the State, and that he be confined in the State prison, at hard labor, until such punishment of death shall be inflicted.”</p> <p>See, also, an interesting opinion by Campbell, J., in Pone v. The People, page 364 of this volume. is informed and believes that, on the 17th day of February last, a writ of habeas corpus was tested from the Supreme Court, allowed by and returnable before the Hon. John H. McCttnn, city judge of said city, a copy whereof is hereto annexed and marked “ A.” That to said writ a return was made, .of which a copy is annexed “ B.” That on said return the matter was heard before said city judge, and on the 18th day of February last an order was made by said city judge, a copy whereof is hereto annexed marked “ 0; ” and under said order, the said Louisa Hash, the party named therein, was discharged from custody, and a final adjudication was thereupon made by said city judge, and further saith not</p> <p>A. OAKEY HALL.</p> <p>Sworn to before me, this 27th / day of February, 1863, (</p> <p>Jesse 0. Vanderpoel, Commissioner of Deeds.</p> <p>The People of the State of New York, to the Honorable John H.</p> <p>McCunn, Oity Judge, of the city of New York, G-REEtinG:</p> <p>Whereas, we have been informed by the official affidavit of the district attorney of the city and county of Hew York,</p> <p>That a writ of habeas corpus was heretofore issued by you under your hand and seal, on behalf of one Louisa Hash, and directed to the warden of the city prison, in the city, and county of Hew York, and the said writ of habeas corpus required the said warden to have the body of the said Louisa Hash before you, the said city judge, to be dealt with according to law. And whereas, pursuant to the requirements of the said writ, the body of the said Louisa Hash was brought before you, and whereas a return was made upon the said writ, and that thereupon you proceeded to hear and determine the said'writ: and whereas such proceedings were had upon the said writ and said return that you, the said city judge did order, adjudge, and determine that the said Louisa Hash should be discharged from the custody and restraint of the warden of the city prison, and we, beings willing to be certified of such proceedings as we have had before you, do command and strictly enjoin you to certify and return those proceedings, with all things, papers and schedules thereto appertaining, unto our justices of our Supreme Court, at the city hall, in city of New York, on the first Monday in May next, at the General Term of said court, under your hand, as fully and amply as the same remain before you, so that our said justices may further cause to be done thereupon what of right, and according to law, ought to be done; and have you then and there this writ.</p> <p>Witness — .Tort att Sutherland, one of the justices of our [l. s.] ■ said court, at the city hall, in the city of New York, this 27th day of February, A. D. 1863.</p> <p>A. 0 AKE Y HALL, District Attorney.</p> <p>By the Court,</p> <p>H. W. Genet, Clerk.</p> <p>[indorsed.]</p> <p>I allow the within writ — New York, February 27, 1863.</p> <p>GEORGE G. BARNARD, Justice.</p> <p>“A.”'</p> <p>WRIT OE HABEAS CORPUS.</p> <p>The People of-the State of New York, to Charles Sutton, Nsq.,</p> <p>[L. s.] warden of the City Prison of the city of New York, Greeting :</p> <p>We command you that you have the body of Louisa Nash, by you imprisoned and detained, as it is said, together with the time and cause of such imprisonment and detention, by whatever name she shall be called or charged, before Hon. John H. MoOunn, city judge of the city of New York, at his office, No. 29 Wall street, in 'said city, forthwith on receipt of this writ, to -do and receive what shall then and there be * considered concerning him; and have you then and there this writ</p> <p>Witness, George G. Barnard, Justice of the Supreme Court of New York, the 17th day of February, one thousand eight hundred and sixty-three.</p> <p>H. W. GENET, Clerk.</p> <p>Chas. S. Spender, Attorney.</p> <p>[indorsed.]</p> <p>In re Louisa Wash.—Writ of Habeas Corpus.—Chas. S. Spencer, attorney.</p> <p>Allowed, this 17th day of February, 1868.</p> <p>JOHN H. MoOUNN, City Judge.</p> <p>“ C.”</p> <p>The within named, Louisa Wash, is hereby discharged, the commitment being illegal, it not specifying the crime for which she was committed, whether it is petit or grand larceny, or what articles it is alleged she has stolen. The commitment is clearly defective for these reasons. Mr. Blunt, assistant district attorney, appearing for the People; and admission of notice filed by Mr. Garvin, assistant district attorney.</p> <p>Wew York, February 18, 1863.</p> <p>JOHN H. MoOUNN, City Judge.</p> <p>“B.”</p> <p>COMMITMENT.—TEMPORARY.</p> <p>Oity and County of New York, ss:</p> <p>To the policemen and constables of the said city, and every, of them; and to the keeper of the City Prison of the said city.</p> <p>These are, in the name of the People of the State of Wew York, to command you, the said policemen and constables, and every of you, to convey to the said prison, the body of Louisa Wash, and deliver her to the keeper thereof; and you, the said keeper, are hereby commanded to receive into your custody, in the said prison, the body of the said Louisa, who stands charged before me, on the oath of Mary Murphy, with the offense of committing larceny, as a pickpocket, from the person of said Mary Murphy, And that you safely keep the said Louisa Wash in your custody, in the said prison, until the above said charge be investigated and determined by me, according to the statutes, in the case of arrest and examination of offenders, made and provided.</p> <p>Given under my hand and seal, in the said city, this thirteenth day of February, 1863.</p> <p>MICHAEL CONNOLLY, [l. s.] Police Justice.</p> <p>On discharging the prisoner, the following opinion was delivered by McCttnn, city judge:</p> <p>The commitment charges the prisoner, “on the oath of Mary Murphy, with the offense of committing larceny, as a pickpocket, from the person of said Mary Murphy,” but does not allege what was taken from the person of Mary by the accused, nor the time, place or any circumstance to show that the offense had been committed.</p> <p>It is necessary to set forth the particular species of crime alleged against the accused with' convenient certainty. And if it is an offense which is created by statute, it has been held that the terms of the statute should be pursued in describing it; and for this reason, that by using other words than those which the legislature has used, it may happen that the offense will not be sufficiently described. This was held in Rex v. Remnant (5 Term R., 169; 2 Leach R., 583), and is regarded as authority here.</p> <p>And so a commitment was held to be insufficient where it alleged that the prisoner had, “ with force and arms, made an assault on the prosecutor, with intent feloniously to steal and carry away from the person,” &c., because the description did not charge him with any offense within the statute.</p> <p>And so in this case. If the accused has committed any crime, it is probably that which is defined in chapter 508, section 33 of the act passed April 17, 1860: “Whenever any larceny shall be committed in said city and county,, by stealing, taking and carrying away from the person of another, the offender maybe punished as for grand larceny,” &c. And the language of this section should have been used, that we could have arrived at a certainty as to whether this was or was not the crime committed, as the other section of the act refers to where the attempt is made to steal as a pickpocket, &c.</p> <p>The commitment should also show whether the accused is charged with a felony or a misdemeanor. If it be for a felony, it must contain the special nature of the felony. (2 Wils. B., 158, 159 ; 2 Hale B., 122.) The crime should be specifically set forth for another reason, that if the party is brought before the court upon a habeas corpus, and no specific crime is alleged, or is so loosely set forth that the court cannot judge whether there is any reasonable ground for imprisonment, the party will be discharged. (2 Hawk. P. G., ch. 16, §16; 1 Ghit. Gr. L., 111.)</p> <p>It appears to me, that upon these proceedings, which are brought in compliance ,of article 2, page 883, 3 Revised Statutes, 5th edition, on habeas corpus, that I am bound, under this commitment, to discharge the prisoner from custody, though 1 am aware that it has been held in 5 Cow. B., 39, and in East B., 157, that if the commitment be defective, the Supreme Court will discharge the prisoner pro forma, and remand him upon a special rule; yet I am convinced that this is a mere matter of discretion, and the court will look into all the facts of -the case; and no person should be unlawfully deprived of liberty through the carelessness, ignorance or design of committing magistrates. For these reasons the prisoner must be discharged in this case, and an order entered accordingly.</p> <p>I. The writ should be quashed for want of jurisdiction.</p> <p>' 1. The city judge at Chambers has no power to allow a writ of habeas corpus.</p> <p>a. It is true the law of his official creation confers upon him all the judicial powers vested by law in the recorder. (Laws of 1850, ch. 205; and 1 R. S., 5th ed., 397.)</p> <p>b. The' recorder exercised the duties of a habeas corpus commissioner, because, 1st (by 2 R. S., original paging, 564, and § 37 of the habeas corpus provisions), application for the writ could be made to any officer authorized to perform the duties of a justice .of the Supreme Court at. Chambers; and 2d (by 2 R. S., original paging, 281, §35 of General Provisions concerning certain judicial officers), every recorder of a city was authorized, “ by virtue of his office, to be a Supreme Court commissioner; ” and 3d, a Supreme Court commissioner was given the duties of a • Supreme Court justice at Chambers. (Id., § 20.)</p> <p>After July, 1847, the office of Supreme Court commissioner was abolished by the Constitution, .art. 14, § 8.</p> <p>The power, as a habeas carpus commissioner, of responding to the application for the writ, probably survived to the recorder. Or, in the language in Renard v. Hargous (2 Kern. R., 263), “the power was continued.'" But no analogy can connect the reasoning in the last named case, with an argument for the power claimed by the city judge, because, in the act reviewed by the court in Renard v. Hargous, the words, “perform the same duties," are additional to these, viz., “ possess the same powers.”</p> <p>Moreover, in the statute affecting the case at bar, the noun “ powers ” is limited by the adjective “judicial." (See this topic, examined in the report, “In re Powers of County Judges3 How. Pr. R., p. 32.)</p> <p>c. But the issuing of a writ of habeas corpus by an officer at Chambers is never a judicial act; and if it were sometimes one, nevertheless, the phrase judicial powers, in the act of 1850, does not include such issue by the city judge.</p> <p>1. The issue of a writ of habeas corpus by a judge at Chambers is not a judicial, but a ministerial act. (Per Kent, Yates v. Lansing, 5 Johns. R., 282.)</p> <p>“ The writ cannot be denied where the granting of it is made a matter of imperative duty by the statute.” (Hurd on Habeas Corpus, 225.)</p> <p>Kent, in his Commentaries, draws the same distinction between act ministerial, as of Chambers, and act judicial, as of banco, consequent upon the extension by the Revised Statutes of the penal provision from Chambers' refusal which previously existéd, to a court refusal. (1 Kent, 634; and Hurd, p. 226.)</p> <p>2. The phrase “judicial powers,” in the act of 1850, related to the powers of the recorder as judge of General or Special Sessions, and as a magistrate quoad justice of the peace.</p> <p>Bouvier defines “judicial power” as “ authority vested in the judges.</p> <p>A judge is an officer of a court during court hours.</p> <p>The habeas corpus statute uses both of these words, viz., judge and officer.</p> <p>■ When the recorder allows a writ, he allows it as an officer, and not as a judge.</p> <p>In the familiar case of Barry v. Mercein (8 Paige, 55), the chancellor says: “ It is not material to inquire whether the chancellor, in allowing the writ of habeas corpus, acts as a mere commissioner under the statute, or as a court proceeding, etc., etc,” thus illustrating the distinction between officer and judge.</p> <p>Section 102 of the habeas corpus provisions draws distinction between judge, commissioner, and officer.</p> <p>See, also, section 4 of article 4 of chapter 815, Laws of 1844, respecting bail on habeas corpus in Hew York city.</p> <p>It may be argued that the fourth section of the act of 1850 negatives the idea that the powers of the city judge are limited merely to the duties of the recorder as & judge of courts, because-that section provides office accommodations for his attendance at all reasonable hours for the transaction of business, except when engaged in holding court.</p> <p>That argument I answer thus: If the issuing of a writ of habeas corpus was the only possible business which the city judge could transact out of court, then the argument now met might, by implication, arise. But the city judge, as judge, must, concurrently with the recorder, have chambers at which to hear complaints as examining magistrate; to entertain applications for stays of proceedings on bills of exceptions; to settle bills of exceptions on hearing; to settle interrogatories, etc., etc., etc.</p> <p>And it was for the purpose of transacting the above species of business that he required Chambers.</p> <p>II. If the city judge had jurisdiction under the writ, he erred in holding the commitment defective.</p> <p>1. The commitment showed that an examination was pending on charge of statutory crime, entitled larceny from the person, and “ stated with reasonable certainty.” (Bac. Abr., tit. Commitment M)</p> <p>2. The paper was what is best known in criminal law as a remand, as distinguished from a mittimus. (1 Archb. Cr. Pl., 36—41, Waterman's ed.)</p> <p>3. The city judge omits to draw a distinction between a remand and a final commitment or mittimus, and he appears to reason on defects, as if the process was a record of conviction.</p> <p>A remand is not a statutory, but a common law process. (Archb., supra.)</p> <p>And a verbal remand fo.r three days after warrant issued, has been held good, (lb.)</p> <p>4. The recital of offense was as strong as that held to be good in a warrant in Potter's Case (note to McLeod's Case, 1 Hill, 399, middle of page, and p. 401, bottom of page), or, as in the cases collected in Hurd on Habeas Corpus, 376-383.</p> <p>5. Will the court further examine the opinion by the light of the following cases:</p> <p>“ It is not necessary to allege the value of the property (i. e., in the warrant); the only effect of omitting to do so is, that the offense would be deemed petit larceny, and therefore bailable before any magistrate of the county.” (Payne v. Barnes, 5 Barb. R., 465.)</p> <p>“ The warrant, though very limited, is sufficient, if it recite the subject of the section.” (Sleight v. Ogle, 4 E. D. Smith, 445.)</p> <p>In ex parte Smith, (5 Cow. R.), the following remand was held sufficient'by the Supreme Court, after arguments by Van ÍTess Yates and Attorney-General Talcott:</p> <p>“Police Office, City op Albany.</p> <p>“ The gaoler will receive and safely keep for further examination, George W. Smith, who is charged with having been engaged in, or accessory to, a robbery of the U. S. mail.</p> <p>“ J. 0. COLB, Justice of the Peace."</p> <p>During the attorney-general’s argument, he said Ip. 275) “This commitment is merely for further examination. No formality is necessary in such a commitment. It may be by a verbal warrant; no crime need be specified. The order in question is in the usual form, and is sanctioned by authorities,” &c.</p> <p>III. It was the duty of the city-judge, although the commitment was irregular, to have bailed, and not have discharged. (See 58, Habeas Corpus Provisions.)</p> <p>I. The commitment is defective. It should have stated that some article, the subject of larceny, was taken. It should have stated some value. It should have stated when, to show that it was within the statute of limitation for the offense, and where, to show that the court had jurisdiction. This is not stating the cause of commitment “with reasonable certainty.” (Rex v. Remnant, 5 Term R., 169; 2 Leach, 583; 2 Wils., 158, 159; 2 Hale, 122; 2 Hawk. P. C, ch. 16, § 16; 1 Chit. Crim. Law, 111.)</p> <p>In the administration of criminal law, the forms of justice ought to be rigidly complied with, and no party charged with an offense should be held by virtue ■ of a commitment, that does not contain one of the requirements of the law.</p> <p>II. It was clearly a matter of discretion whether the judge would discharge the prisoner pro forma, and- then remand or take bail. Strictly it was his duty, in the language of the statute (3 R. S., 5th ed., p, 895, § 103), “ to determine whether the party is- lawfully committed.” He did determine the question upon inspection of the commitment, which was all there was before him.</p> <p>The prisoner hail been in prison from the 13th to the 17th day of February, 1863, before the writ was issued upon a temporary commitment. This was an unreasonable detention. The prisoner was entitled to a speedy examination. It was the duty of the judge before whom the prisoner was brought, to take into consideration this fact exercising his' discretion. The statute points out the duty of the officer before whom-the prisoner is brought; its language is:</p> <p>“If no legal cause be shown for such imprisonment, or restraint, a further continuation thereof, such court or officers shall discharge such party.from the custody or restraint under which he is held,”</p> <p>The cases in which the court or officer shall remand, are also pointed out by the statute, and are not left to arbitrary discretion. They are as follows:</p> <p>“ It shall be the duty of the court or officer forthwith to remand such party, if it shall appear that he is detained in custody, either,</p> <p>“ 1. By virtue of process issued by any court or judge of the United States Courts, in a case where such court or judge has exclusive jurisdiction; or,</p> <p>“2. 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; or,</p> <p>“ 3. For any contempt especially and plainly charged in the commitment,- by some court, officer or body having authority to commit for the contempt so charged; and,</p> <p>“4. That the time during which such party may be legally detained, has not expired.” (5th ed. R. S., vol. 3,p. 887, §§ 54, 55.)</p> <p>Certainly the officer could not have remanded where no legal cause for detention appeared on the face of the commitment. It was his duty, according to the letter and spirit of the statute to discharge.</p> <p>The cases cited by the prosecution do not apply to the facts as presented in this case. The case of Payne v. Barnes (5 Barb. R., 465), does not decide the question here. The court will see, by examining the case, that the time, the place and the amount were stated. In the commitment under consideration, none of these requisites are stated.</p> <p>In the case of Sleight v. Ogle (4 E. D. Smith R.), the question arose, as in the last case, in a civil suit, and the question here presented was not in issue; for in the case of Sleight v. Ogle, it appears that a complaint in due form was made before the* magistrate who issued the warrant, and the judge who delivered the opinion says: “ This was, prima facie, sufficient to authorize the arrest.”</p> <p>The case in 5 Cow. B. (ex parte Smith), is not applicable to the question here. He was a fugitive from justice; the offense one against the.laws of the United States: The counsel for the prisoner did not raise the question as to the validity of the commitment, neither did the court allude in any manner to that question.</p> <p>The inferences .to be drawn from the case are in favor of the point claimed by the prisoner here.</p> <p>The city judge has power to grant writs of habeas corpus.</p> <p>All judicial powers vested by law in the recorder of the city of Hew York, are hereby conferred upon such city judge; and said city judge shall, concurrently with said recorder, perform and discharge all judicial duties imposed upon such recorder. (Laws 1850, ch. 205, § 3, and 1 R. S, 5th ed., p. 397, §64.)</p> <p>Every county judge, within the county in which he shall have been elected, shall have power, and it shall be his duty, to perform all such duties, and to do all such acts, when not holding a County Court, as might have been done or performed by the laws in force on the 12th of May, 1847, by the judges of the Court of Common Pleas, or by any one or more of them, at Chambers or otherwise, when not holding court, or by any other judge being of the degree of counselor of the Supreme Court, and acting as a Supreme Court commissioner. (3 R. S., 5th ed., p. 306, § 32.)</p> <p>The judges of the Court of Common Pleas for the city and county of Hew York, elected pursuant to chapter 255 of the Laws of 1847, and the mayor, recorder and aldermen of the said city shall be judges of the Court of Common Pleas, of the said city and county. (3 R. S, 5th ed., 307, § 41.)</p> <p>Common Pleas may be held by. recorder alone. (Ib., § 42.) The judges of the Court of Common Pleas are, authorized to perform the duties of a justice of the Supreme Court at Chambers. (Laws 1847, p. 281, § 7; 1 Park. Cr. R., 138.)</p> <p>The same power is given to the judges of the Court of Common Pleas, in and for the city and county of Hew York at Chambers, as is given by any law of this State to the justices of the Superior Court of said city (3 R. S., 309, 5th ed.), and a judge of the Superior Court at Chambers, sitting as a Supreme Court commissioner, has power to issue a writ of habeas corpus. (1 Duer R., 709 ; 2 R. S, 281, § 33.)</p> <p>Recorders of cities and judges of the county courts, being of the degree of counselor-at-law, may perform the duties of a justice of the Supreme Court at Chambers. (2 R. S., 281, § 32 ; Opinion of Justice Willard, 3 How., Pr. R., 32 ; Op. of Jus. Harris, 3 Id., 40; Op. of Jus. Barculo, 3 Id., 172.)</p> <p>In which latter case Justice Barculo held:</p> <p>“ I concur fully with those of my brethren who hold that county judges are clothed with the power of performing certain duties of a justice of this court at Chambers. This power is given to those officers by the new judiciary act, if it is possible for legislative enactment to do so, &c., &c.”</p> <p>The city judge of the city of Hew York has the powers of a former Supreme Court commissioner. (Avery's Case, 6 Abb. R., 146.)</p> <p>The issue of a writ of habeas corpus by a judge at Chambers is not a mere ministerial act. It involves the exercise of judicial discretion.</p> <p>The writ of habeas corpus is a prerogative writ, not ministerially issuable, i. e., not issuable of course; and yet it is a writ of right on a proper foundation, being made out by proof. (3 Hill R., 649, Note pl. 2; see 16 Barb. R., 362.)</p>

The following indictment for obtaining money by false pretenses was found against the prisoner.

This was an application to be discharged from imprisonment on habeas corpus, on the ground that the prisoner, who was indicted and imprisoned for an offense not triable in the Court of Sessions, had been detained in prison beyond the time prescribed by 2 Bevised Statutes, 737, § 31.

The prisoner was indicted for the murder of John W. Matthews, alleged to have been committed on the 30th June, 1860, by shooting with a pistol, and pleaded not guilty.

<p>The wanton, malicious and secret destruction of the personal property of another is a misdemeanor at the common law.</p> <p>The prisoner was indicted for having, in the daytime, maliciously and - clandestinely, and in a spirit of waritonness and revenge, cut, mutilated and injured the harness of D. T. The indictment was quashed at the Sessions, on the ground that it did not charge any criminal offense, either at common law or by the statute. On error, the judgment was reversed, the court holding that the offense charged amounted to malicious mischief, and was punishable by the common law as a misdemeanor.</p> <p>The case of The People v. Kilpatrick (5 Benio, 211), commented on and distinguished.</p> <p>Form of an indictment for malicious mischief, and of an entry in the record quashing the same.</p>

The defendants were indicted for thé forcible seizure, imprisonment and abduction of one Arguelles, who, it was claimed, was secretly taken out of the country by the assistance of the defendants and conveyed to Cuba. An application was made, in behalf of the defendants, for an order removing the indictment for trial to the Circuit Court of the United States, under the provisions of section 5 of chapter 84 of the acts of Congress of 1863.

The defendant was indicted in the Court of Sessions of Yates county, for a nuisance, as follows: State of New York, Yates County, ss: The jurors of the People of the State of New York, and for the body of the county of Yates aforesaid, upon their oath, do present, that on the first day of January, in the year of our Lord one thousand eight hundred and sixty-three, there was, and from, thence hitherto there hath been, a certain plank road, leading from near the village of…

The prisoner was indicted for the murder of Mary E. Phelan, and pleaded not guilty. The trial took place at the Ulster Oyer and Terminer, in March, 1864, Mr. Justice Peckham, presiding. Held: “ that from the general superintending power of this court we have a right to examine whether the attachment has not improvidently issued, and on this ground review the order of the judge by whom it was directed.” IV.

This was an action for false imprisonment, tried at the Otsego circuit, befofe Mr. Justice Balcom, in December, 1862. The defendant justified the arrest and imprisonment under a warrant of commitment issued by the defendant as a justice .of the peace.

<p>The defendants having pleaded not guilty to a defective indictment for murder, the court refused to quash it upon their motion.</p> <p>The court will not ordinarily quash an indictment after the defendants have been arraigned and pleaded not guilty.</p> <p>In cases of indictments which charge the higher crimes, or other offenses which effect the public at large, as perjury, forgery, &c., the courts uniformly refuse to quash, except where the objection could not be obviated or the error corrected by a new indictment. Per Morgan, J.</p> <p>The court is in no case bound to quash an indictment ex debito justicia, but may oblige the defendant to plead or demur. It is to be presumed, in the first instance, that every person has a Christian as well as a surname, and an indictment for murder is defective which describes the deceased as “one Hardy,’.’ without other designation, and without an averment by way of ' excuse, that his name is otherwise to the jurors unknown. Per Morgan, J.</p>

This case comes before the court on a writ of error sued out in behalf of the People. Held: nor by any grand jury duly impanneled, charged and sworn to inquire for the People of the State of New York, and for the body of the county of Otsego, because he says that a Court of Sessions was appointed to be held in and for the county of Otsego, at the court house in Cooperstown in said county, on the 8th day of February, in the…