5 Park. Cr. 52 | New York Court of General Session of the Peace | 1838
The defendant in this case was indicted for manslaughter in the first degree, in feloniously causing the death of one Tiberius' Gr. French, on the 10th day of October, 1857, by administering to him deleterious and poisonous vegetable herbs and other things and decoctions, drank therefrom,
I. That the defendant was not legally arraigned.
II. That he never legally pleaded to the indictment.
III. That James E. Wood, one of the jurors, had expressed himself before, and pending the-trial, if not hostile to the defendant’s practice, hostile to the herbs used by him and especially that lobelia is a poison.
As to the first objection to wit: that the defendant was not legally arraigned, it is only necessary to know the legal object of an arraignment to answer that question. Sir William Blackstone says (4 Com., p. 322): “ To arraign is nothing else but to call the prisoner to the bar of the court, to answer the matter charged upon him in the indictment” (2 Hale, P. C., 216); when brought to the bar “ he is called upon by name to hold up his hand. “ However,” adds the learned writer, “ it is not an indispensable ceremony, for, being calculated, for the purpose of identifying the person, any other acknowledgment will answer the purpose as well.” (4 Black. 323.)
In this case Frost was actually put to the bar, he actually held up his hand, and thereby, as well as by subsequent acts, admitted his identity. The objection therefore raised by his learned counsel, that he was not legally arraigned, falls to the ground. . • .
The second objection is that he never legally pleaded to the indictment. Much reliance was placed, to sustain this objection, on the decision of Oh. J. Parsons, and the other judges
Hardy was indicted for the murder of an infant. He was arraigned and pleaded before one judge only. The act of 15th March, 1805, under which he was tried, “ provided that all indictments for capital offenses, shall be heard, tried and determined exclusively when three or more justices were present.” (2 Mass. R., 315.) Hardy had never been arraigned or pleaded before any competent tribunal, for he never was either arraigned or pleaded when three or more judges were present. It is true he exercised the right of challenge and was fully defended by counsel. He was convicted. Chief Justice Parsons took the distinction between capital offenses, that is offenses punished with death, and those of an inferior grade. His language is: “ We are all of opinion, that the power of hearing, trying and determining an indictment for a capital offense, includes a power to arraign a prisoner and to record his plea” (p. 316). The verdict was set aside and a new trial granted, the chief justice saying, “ if quibbling is at anytime justifiable, certainly a man may quibble for his life.”
In the case, however, of The People v. Ransom, in our own State, reported in 7 Wend. R., 416-429, where the prisoner was tried and convicted of murder, the court refused to set aside the verdict, though the clerk had npt put into the ballot box the names of all the jurors, as he is directed by statute to do, the court saying that “ whatever irregularity, therefore, there may have been in this case, it is most evident that it has not effected or prejudiced, in any manner, the rights of the prisoner, and that he is not, according to the best established principles, entitled to a new trial.” (7 Wend. R., 429.)
Tn the case now-before the court, there is another view to be taken. Frost was clearly duly arraigned before a court of competent jurisdiction. It is not necessary he" should plead not guilty. It is enough for him to demand a trial. (2 R. S., 611, 2d ed.)
Surely this demand to be tried may be by acts, or words, or both. Frost’s counsel set down the cause for trial. Frost
This cause may be placed in another point of view, and which will remove all doubt. It may be treated as a misdemeanor or a felony. Manslaughter in the fourth degree may be punished “ by imprisonment in a State prison for two years, or in a county jail not exceeding one year, or by a fine not exceeding $1,000, or by both such fine and imprisonment. (2 R. S, 552, 2d ed.)
On all these grounds the second objection must be overruled.
We come now to the third objection, to wit: that Mr. Wood, one of the jurors, had expressed himself, before and pending the trial, hostile to the defendant’s practice. There is no doubt that every juror sworn to decide a cause, especially in a criminal one, should be superior to all and every unworthy bias or partiality. In this case, the jurors were allowed to separate by the consent of all parties. It is true that two witnesses have attempted to assail Mr. Wood—one by stating what he had said before the trial, one while the trial was pending, but it is equally true that Mr. Wood most fully, under his oath, meets and repels the charges. The entire conduct of Mr. Wood, and of all his fellow jurors, throughout the whole hearing of this long and arduous cause, was most scrupulously correct and discreet. They were attentive, patient and exemplary. There being no authority in the books for interference,
The court had originally thought that public duty demanded that Frost should be subjected to imprisonment, but after due deliberation, considering that the legislature have sanctioned the practice, in the healing art, of using herbs, the growth of our own country (1 R. S., 2d ed., p. 451), and by men however uneducated and ignorant, and this being the first conviction for manslaughter, under a system deemed by the court, upon-the proof before it, pernicious and dangerous to human life, we have concluded that a fine, and a moderate fine, will answer all the ends of public justice—the court reserving a severe punishment for any future crime of a similar character.
The judgment of the court is, that Frost pay a fine of $250, to stand committed until such fine be paid.
But it was held in The People v. Van Steenbergh (1 Park. Cr. R., 39), that such an offense is within the statutory definition of a felony:
