Majority
p. 162The People against Washburn. NEW YORK, May, 1813. objected, 1. That the indictinent was bad, as it did not show a proper court and jurisdicj¡on in the sessions.[2] It is said to be held “ before the justices, of the peace of the people of the state of JSJew-Yo?% the peace of the county of Clinton to keep,” See. instead of following the usual f°rm, and according to the act, “ assigned to keep the peace of (he people, &c. in the county.” The justices are not appointed and assigned to keep the peace of the county, but to keep the peace of the people in the county. i To support this indictment, it is essential that it should state - that the prisoner, whom the defendant assisted to escape, was com* mitted for a felony. .
Headnote
Where A.was indicted for aiding and as-cape’ft-omgaoi committed' “ on suspicion accessary to the house*'"of S. with intent felony the defendant ■was not in-the statute, 5™a. 12,' is.) the prisoner" wa^not^comany distinct & of/e¿»yIK ERROR from the general sessions of the peace of Clinton ° 1 COUllty.
The defendant was indicted, at the general sessions of the peace ™ ^y °f Clinton, for aiding and assisting to escape out of gaol, one Peter Bfandeville, committed “on suspicion of having been accessary to the breaking the house of Peter Sailley, Esq. of Pittsburgh, with intent to commit felony.”
Z. R. Shepherd, for the defendant,
p. 163Instead of averring the fact, the indictment sets forth the warrant, in Ikbc verba, on which Mandeville was committed; and it charges a misdeniesnor, or trespass only, not a felony. contended that it was sufficient if the indictment stated that the court was held before the justices of the peace of the county. It is not necessary to state that they are assigned to keep the peace of the people.[2] The Warrant must be understood as charging Mandeville as being accessary to a burglary; and if so, it was a felony. It is enough that the prisoner was committed on a suspicion of a felony, for it is a lawful commitment.[3]
Savage, (District Attorney,) contra,
The indictment was under the statute, which makes it an offence punishable in the state prison, for aiding a prisoner to escape, detained for any felony whatsoever; Here was no felony charged in the warrant of commitment of Mandeville. The house might have been an ash-house of P. Sailley, and the attempt in the day-time; and it would not be felony for the mere attempt. The charge was not burglary. It might have been only a trespass: and then it was but a suspicion of being accessary. Clearly the defendant was not indictable and punishable under the statute, for the prisoner was not committed under any distinct and certain charge of felony. The judgment must be reversed.
Judgment reversed.