22 Wend. 167 | N.Y. Sup. Ct. | 1839
By the Court,
The first question made by the prisoner’s counsel arises upon the record, and respects the organization of the court by which he was tried. It was composed of the circuit judge, who presided, Judge Inglis, an associate judge of the New-York Common Pleas, and Messrs. Benson and Purdy, city aldermen. The 2 R. S, 129, 2d ed. § 3, declares, that each of the circuit judges possesses the powers of a justice of the supreme court in the courts of oyer and terminer, and jail delivery. By § 5, the circuit judges respectively are to appoint the times and places of holding their circuit courts and the Courts of oyer and terminer within their circuits; and by *§, 6, the respective circuit judges of the respective circuits comprehending the cities of New-York and Albany, have ah unlimited discretion as to the place of holding their courts within these cities. By § 12, p, 130, it is made the duty of the respective circuit judges to attend at the appointed places; and preside in the courts of oyer and terminer, and by $ 14, each justice of the su»
Looking at the previous statutes, and taking the clauses conferring power on the associate judge, in the act of 1834, with their unrestricted import, there would seem to be no doubt that the associate judge took, among other powers, those of the first judge, in respect to the court of oyer and terminer. Such is the obvious sense of the clause which invests him with all the powers of the first judge by virtue of the statutes of this state relative to any legal proceedings. One of his statute powers was, to hold a court of oyer and terminer in conjunction with two aldermen. It would be singularly hypercritical to deny that this is a power relative to a legal proceeding. There is nothing in the words which, in their own import, confine them to sole statute powers in any legal proceeding, more than to a power exercisable in conjunction with others. The first judge had both. As a commissioner in certain cases, he might act alone, wherein it was seen to be useful that in case of his absence the proceeding should be continued and perfected before the associate; and so vice versa. The added clause, therefore, did well in providing for such a case; and may be satisfied by being applied accordingly, without giving it the further effect contended for, as a restriction upon the general clause conferring on him all the statute powers of the first judge, without discrimination. These general words were also in themselves sufficiently broad to make the associate a judge of the general sessions, and, I think, rendered the sixth section unnecessary. I admit that this section is evidence that the legislature understood the general- words as being possibly of narrower import than I have supposed, which, for more abundant caution, added the sixth section. And, if the act of 1839 were a mere extension" of the powers of the associate judge under the act of 1834, to Judge Inglis, we migh be left in such doubt of his power as to call for a pardon, if not for a reversal of these proceedings; and especially
It is equally clear, that over the court thus formed, Judge Edwards had a right to preside. By one of the sections already cited, it was made his general duty to preside at all the courts of oyer and terminer in his own circuit. By another, he had the same power in that or any other court of oyer and terminer, as a justice of the supreme court; and by another section, either of the circuit judges may preside for the whole or any part of the time during which any court of oyer and terminer continues.
Then, as to the point made by the prisoner’s counsel, on the leaving of the bench by Judge Edwards, after the trial had progressed under his direction. It is true, that the business arrangements of the judges should be such as to secure a quorum for the whole trial; and we admit that judges' of grade and number sufficient to constitute a legal tribunal, must begin and continue through with the trial. But that does not include- supernumeraries. Any one judge of this court, who has heard the argument of a cause, may decide it, though the other judges were present when the argument began, and were called away before it closed. So should all three of the justices of this court, or three circuit judges; commence a criminal trial in the city of New-York, with two aldermen, together forming a court of oyer and terminer, and two of the justices in one case, or of the circuit judges in the other, might leave the bench in the course of the trial, without interrupting its progress; for a quorum would still remain, consisting of the same judges before whom the trial began. That is, in effect, the case at bar. Here judge Edwards and Judge Inglis, both and each, had
As this case is important in itself, and any doubt, not to say mere silence, on the merits of any point made, might call for its review on an application for pardon,; or perhaps on writ of error upon a record of judgment, or motion for a new trial, we have preferred to examine the objection founded on Judge Edwards’ leaving the bench, though we think it not properly before us on the bill of exceptions, To present it properly now, it should at least have been made a part of the general record ; short of that, we are inclined to think, it can be treated as no more than matter of irregularity examinable on motion" in the court below. A special entry of the facts on the judgment record, after sentence, would present a different question.
There is nothing in the objection to the question, which Timpson was allowed to answer. It was insisted that what was said or done, after White left, was inadmissable. The question related to what the witness saio. Suppose he had seen Fitzpatrick dead of the wound inflicted by the prisoner,. can it be doubted but that he might have stated the fact ?
With regard to Wright’s supposed deposition before the coroner, we must not be understood as conceding on the authority of the cases in respect to memoranda under - the statute of frauds, Merritt v. Clason, 12 Johns. R. 102; 14 id. 484, S. C. nom. Clason v. Bailey on Error, that depositions may be drawn up with a pencil. But there are several other difficulties. We do not mean to say that any of these lie in the legal effect of the writing, though it is impossible to see that it conflicted with what Wright had said. But it is no way authenticated; and though the law prp
Next, as to the objection for variance between the indictment and proof. The first count is for murder at the common law. True, it interpolates the words of a particular
Mr. Chitty, after giving many instances in which the jury may divide the count, by finding only a part of it to be true, if that part constitute a complete offence, and rejecting the residue, adds; “ the only exception to this rule seems to be, where the prisoner, being originally indicted for a different offence, would be deprived of any advantage which he would otherwise be entitled to claim. Thus he cannot be indicted for a felony, and found guilty of a misdemeanor but the reason given is, that he would thus, among other things, be deprived of a copy of the indictment) and the right of having counsel. Vid. 1 Chit. Cr. Law, 637, 8, 9, Even this is an objection which, under our system, would be entirely inapplicable. Clear as the doctrine is on English authority, it seems to be still clearer, therefore, with us. It fully sustains the charge of the court below, -The first count was substantially satisfied by proof of any offence which is made murder by the statute.
The remark of the judge, that a doubtful case should be turned in favor of a prisoner by proof of good character or a virtuous life, but that the present case wanted both, was strictly true; and a similar remark was sanctioned by this court as proper in The People v. Vane, 12 Wendell, 78. I once made a like remark, adding that probably the prisoner could not make out a good character, inferring this from his admission in conversation) that he had before been in the state prison. This court held that I had improperly let in the admission and the remark by me, in connection with the admission, was assigned as one reason why the judgment should be reversed. The People v. White, 14 Wendell, 111. That is going far enough.
On the whole, we are clear against all the exceptions * and the law must take its course. Our order is, that the record be remitted, with directions that the court below pass sentence on the prisoner, at the next court of oyer and terminer in the city of New-York.