5 Park. Cr. 364 | N.Y. Sup. Ct. | 1863
The prisoner, Harvey Done, was tried and convicted at the Madison County Oyer and Terminer, in April, 1862, of murder in the first degree, and was sentenced to “suffer the punishment of death prescribed by law, and that he be imprisoned in the State prison at Auburn until such punishment be inflicted.” Before sentence, the counsel for the prisoner moved in arrest of judgment, on the ground that the sentence provided by the act of 1860, defining the crime and punishment of murder, could not be executed; that the act of 1860 repealed the mode of punishment as provided in the Revised Statutes, and that the act of 1861 repealed the act of 1860, so that the prisoner cannot be sentenced for the crime of murder in the first degree, as his rights were fixed under the act of 1860; that it was unlawful for the court to pass any judgment against the prisoner; that if the court should sentence the prisoner under the act of 1860, it would be unlawful to execute the sentence, and that by the laws of the land, no sentence or judgment can be made or executed in this case:—all and each of which points were overruled, and counsel excepted. The murder of which the prisoner was convicted was committed in December, 1860, after the passage of the act of that year. The punishments in England, when the offender was to suffer death, were
In 1712, Robert Hunter, then being governor of New York, in writing to the Board of Trade, among other things, speaks of a slave insurrection and the killing of several whites by the negroes. He says, the slaves were arrested and “ forthwith brought to their trial before the justices of this place, who are authorized by act of assembly to hold a court in such cases. In that court were twenty-seven condemned, whereof twenty-one were executed; one being a woman with child, her execution by that means suspended; some were burnt, others hanged, one broke on the wheel, and one hung alive in chains in the town; so that there has been the most exemplary punishment inflicted that could possibly be thought of.” He might well have added, as he did, “ which only this act of assembly could justify ” (See vol. 5, Colonial His., pp. 39, 341.) In 1741-42, there occurred what has become historically famous in this State as the negro plot, wherein love of freedom in the negro, introduction of popery, incendiarism and plunder are combined^ Thirteen blacks were burnt at the stake, and one white man and one negro were gibbeted. (See pamphlet containmg trial, and Smith's History of New York, vol. 2,pp. 70-72.)
The punishment has been various . among different nations. But in England, throughout her entire history, in the province of Hew York and in the State of Hew York, the punishment has always been inflicted by hanging the criminal by the neck. (See English State Trials, commencing in the fourteenth century, in which it will be found that in every case of simple murder the sentence was that the prisoner be hung by the neck.) Of course I do not refer to the killing of a husband by the wife, or a master by the servant or slave, which constituted what was termed petit treason, nor to the acts’ of assembly for punishment of negroes, already referred to, but murder, as generally understood and defined, and what the legislature must have understood by the term when they enacted the law of 1860. Unless, then, we hold that the repeal of section twenty-five, of the chapter and title of
But, in my opinion, the imprisonment would be legal and right if the punishment of death remains,, even though the governor may not feel authorized, under the act of 1860, to issue his warrant for the execution of the prisoner. The nice question which arose in The People v. Hartung (22 N. Y. R.), is not in this case. In that, as to Mrs. Hartung, the act of 1860 was passed after the offense had been committed, and it
The counsel for the prisoner also contends that the sentence or judgment is unauthorized, because the act of 1860 provides that the prisoner shall be sentenced to confinement and hard labor, and that, in the present case, the sentence is only imprisonment in the State prison, and, therefore, it is more severe than the act authorizes, as it amounts to a sentence to solitary confinement. I think a sufficient answer to this is, that' the general statutes in relation to State prisons in this State regulate the matter. The 126th section, page 1093, 3d volume, 5th edition, is as follows: All convicts in a State prison other than such as are confined in solitude, shall be kept constantly employed at hard labor during the day time, except when incapable of laboring by reason of sickness or bodily infirmity.” Mow, by section 131, page 1094, same volume, it will be seen, that in order to enforce discipline and secure entire submission and obedience, the warden of the prison may confine a convict in a cell, and retain him there until he shall be reduced to such submission and obedience. Hard labor is the rule of the State prison in this State. Solitary confinement is a mode of discipline. I am not aware of any case in which the sentence to the State prison condemns the prisoner to solitary confinement. By section 56, page 980, 3d volume, 5th. edition, it will be seen, that where any person shall be convicted of an offense punishable by imprisonment in a county jail, the court “ may sentence such person to be confined in a solitary cell, but such imprisonment shall, in no case, exceed thirty days in the whole.” The sentence of the prisoner to confinement in the State prison was necessarily a sentence of imprisonment at hard labor. The law regulating our State prisons determines it and makes the sentence definite and certain in that respect. Were it otherwise, I do not think we could say that the punishment was more severe. The grave controversy which once
On the trial, certain statements made by the prisoner after his arrest, were given in evidence, under the prisoner’s objection, but there were no specific objections “ on the ground that they were elicited by reason of hope dr favor, or that it would be better for him to confess.” The act of 1855 was amended, chapter 330, Laws of 1858, striking out “ from the Court of Oyer and Terminer of this State,” so that it is only in case of trials in the Court of General Sessions in the city of New York, brought up by writ of error, that the appellate court: may now grant a new trial, whether any exceptions shall have, been taken or not in the court below. But apart from this, even if we should review the matter, I do not think the state-' ments amounted to a confession. The prisoner simply indicated a spot where they might search for the bank bills inquired
In The People v. McMahon (15 N. Y. R., 386), Judge Selden, speaking of confessions not voluntary, such as do not proceed from the spontaneous suggestion of the party’s own mind, free from the influence of extraneous disturbing causes, says that the confession is excluded, “because it is in its nature unreliable, and not on account of any impropriety in the manner of obtaining it, and that in this all the authorities agree.” In this case, so far as the prisoner gave information or intimated where the bills might be found, he was confirmed by other witnesses. As said by Phillipps (vol. 1. p. 116), “that part of his confession in which he has described a particular spot, or the place where the goods were concealed or deposited, would be inadmissible, unless confirmed afterward by the proof of finding them there.” In the case at bar, there was that precise confirmation. In the case of The People v. McMahon, it must be borne in mind that the question arose as to the statements of the prisoner before the coroner’s jury, made under oath. I do not think this case shows, so far as we have the evidence, any serious disturbing causes operating on the mind of the prisoner, which' should cause an exclusion of a confession, even if he had made one. But, as remarked, the statement which he did make, confirmed as it was by other witnesses who found the bills in the indicated place, was clearly admissible. (Cow. & Hill's notes to Phill. Ev., note 226, part 1.) In the note this language is used: “ There is a strong current of authority running with the text, that both the disclosure and the fact or circumstance connected with and going to its construction, shall also be received in evidence, and they go to the jury with their joint force.” This disposes of the only question which can be material, arising out of the admission or rejection of evidence on the trial.
The conviction and judgment of the Oyer and Terminer should be affirmed.