McGarry v. People

2 Lans. 227 | N.Y. Sup. Ct. | 1870

By the Court

Johnson, P. J.

The caption is no part of the .indictment, and it is unnecessary either in the caption or in the body of an indictment to state the names or the number of the grand jury. It is sufficient if the indictment shows upon its face that the grand jury were of the number and qualification required by law, as it does here. (People v. Bennett, 37 N. Y., 117). The question in that case, arose upon motion to quash the indictment, for the same alleged defect. It appears upon the face of the indictment that the grand jury were duly sworn and presented the defendant on their oaths. It was proper to show the name which the corporation owning the property was generally known by. The building was alleged in the indictment to belong to the “ Phcenix Mills Company.” The name of the corporation as it appears in the certificate of organization is “ The Phcenix Mills of Seneca Falls.” That is, therefore, its legal name. But in an indictment if the name of the person stated as the one injured, is the name by which he is usually known it is sufficient, although that is not his real name. (Arch. Crim. Pl., 31, 3d Am. ed.) There is no good reason why this well settled rule should not apply to the name of a corporation as well as to that, of an individual. If the description of the party injured is sufficient to inform the prisoner who are his accusers, or whose property he is accused of having taken or injured, that is enough. (1 Chit. Crim. Law, 211.)

It was also proper to prove what the building injured was erected for. It was alleged in the i idictment to have been erected for the manufacturing of woolen goods. .But it had not been completed, so that it could not be used for that purpose at the time of the fire. There was no other way of proving what it was erected for except by paroi. The president of the company was the most suitable person to prove the fact by. It was proper for the district attorney to inquire of the defendant if he was not secretary of the hose company, on his cross-examination, and the objection to the inquiry was properly overruled. It. was not compelling" him “ to he a witness against himself ” within art. 1, section 6, of the constitution of this State. He was a volunteer witness under the provisions of chap. 678 of the Laws of 1869. He was not-only a volunteer, hut had taken the necessary oath-to enable himself to testify, “ to tell the truth, the whole truth, and nothing but the truth ” upon the whole issue of traverse between himself and the people. Ho could not have been compelled to give evidence at all; hut when he made himself a witness, under the privilege conferred upon him by this statute, he waived the constitutional protection in his favor and subjected himself to the peril of being examined as to any and every matter pertinent to the issue. Any other construction would render this statute the most effectual shield to crime and criminals which could possibly he devised.

The.charge of the judge to the jury that if the building was “ so far advanced in its construction as to have assumed the form and character of a building, and to he properly denominated a building,” it was the subject of arson, within the meaning and intent of the statute, was, I think, correct. It was left to the jury to say as matter of fact whether it was advanced to that stage. The statute (2 R. S., 667, § 4) designates several buildings which are made the subjects of arson in the third degree, when “ set fire to or burned in the night time,” as “the house of another not .the subject of arson in the first or second degree,” “ any house of public worship or any school-house,” “ any public building belonging to the public,” &c\, “ any barn or grist mill,” “ any building erected for the manufacturing of cotton or woolen goods, or both, or any paper, iron, or any other fabric,” or “ any fulling mill.” It is not necessary that the building, in a case like this, shall be a woolen or a cotton factory, or a manufactory of any other fabric when set on fire. If it has been erected for that purpose it is enough. The statute plainly distinguishes between buildings of that class and other buildings mentioned in the same section. In the latter case the statute plainly imports buildings completed and used, or capable of being used at the time of being fired, for the designated purpose. Not so in regard to buildings of the kind in question. The object of the statute, doubtless, was in regard to such buildings to furnish more ample security to persons about to embark in that kind of business as matter of public policy. The only question of tact, then, was, in this aspect of the case, whether this at the time was a building erected, and erected for the designated purpose. The evidence, I think, shows most clearly that at the time it was a building. It had been raised or erected and covered by a roof, and inclosed on at least two sides, with a portion of the floors laid, and all the window frames in, but not the sashes. In short, it was an erected building, but not a completed building; and having been erected for the purpose of manufacturing, was the subject of arson under the statute. The words “erected” and “completed ” are words of quite different signification, and there is no reason for supposing that the former was used in the sense and to express the meaning of the latter in the statute. None of the exceptions to the charge or to the refusal to rule, or to charge as requested, are well taken. The conviction was, therefore, right, and should be affirmed, and the case remitted to the Court of Sessions of Seneca county to have the proper sentence pronounced.

Ordered accordingly.

Note. — It is held by the Court of Appeals in Brandon v. The People, &c., decided June 21st, 1870, that a prisoner who testifies on his own behalf, is subject to a like cross-examination with other witnesses. [Rep.]