People ex rel. Tweed v. Liscomb

fact in terms in such return. The commitment was in form and substance, as the statute required it should be, in order to justify the imprisonment and detention of the relator. The provision made upon this subject is, that “ whenever a sentence of imprisonment in a county jail shall he pronounced upon any person convicted of any offense, the clerk of the court shall, as soon as may be, make out and deliver to the sheriff of the county, a transcript of the entry of such conviction, in the minutes of the court, and of the sentence thereupon, duly certified by such clerk; which shall be a sufficient authority to such sheriff to execute such sentence, and he.shall execute the same accordingly.”^[56] The conviction and sentence of the relator were entered and certified as this section required that it should be. That very clearly appeared from the copies certified hy the clerk of the court, returned to the. writ of habeas corpus, and produced by the warden of the penitentiary on the hearing. The sentence, as well as the commitment 'of the relator, were for imprisonment in the penitentiary; but «that did not render the provision of this statute inapplicable to the proceeding, for the penitentiary mentioned was the county jail, or county prison, which is substantially the same thing, for the detention and punishment of persons convicted in the county of Hew York of offenses not punishable by imprisonment in the State prison, and not specially rendered punishable elsewhere. This is rendered very clear, by the provisions made upon the subject by chapter 176 of the Laws of 1814. -The preamble to that act recited that it was represented by the mayor, aldermen and commonalty of the' city of Hew York, that they were erecting, and had nearly completed, a . building designed to be used as a jail for the confinement of such offenders as were to be kept at labor during their imprisonment, and requested that it should be established as one of the jails of the city, and that the provisions, afterward made, should be enacted relative to the commitment of offenders to such prison. It was-then provided that the building referred to should become one of the jails of the city, by the name of the penitentiary of Hew York, and that it should thenceforth continue the jail- of said city, for the confinement and safe keeping of all persons convicted of any crime or misdemeanor, and sentenced to confinement therein by any

Court of Oyer and Terminer in such city ; and that the keeper of such penitentiary should keep all persons committed to it, in the same manner, and under the same penalties, as the sheriffs of other counties in the State ought to keep in the jails of the respective counties the criminals committed to them.^[56] These provisions still remain in force without any substantial change in their effect, and they created the penitentiary a prison for the punishment and confinement of a class of offenders, convicted of offenses not punishable by imprisonment in a State prison. For that purpose it was created a jail of the city of Hew York, to which offenders convicted of misdemeanors, not only could be, but should be sent as they otherwise would have been, simply to the jail of the county. The keeper was required to receive and keep that class of offenders in the same manner as sheriffs of other counties received and kept the same description of persons ; and that, since' the Eevised Statutes went into effect, has been, by means and under the authority of the commitment, provided for by the section already quoted.

Other acts, more recently enacted, have, for certain purposes, referred to the prison, still under the special charge of the sheriff of the county of Hew York, as the county jail; but they in no way modified the provisions contained in the act of 1814, by which the penitentiary was created and designated a jail for the punishment of persons convicted of crimes. By that act it still continues to be the proper prison for persons convicted of misdemeanors in courts of Oyer and Terminer held in the city of .Hew York, as well as in the other courts mentioned in the law. And while it was denominated a city jail, the objects to which it was devoted render it in reality the city and county prison for the purposes designated in the act.

The relator was formally committed to that prison by the commitment which was issued, and, from the entry made in the minutes of the court, it appeal’s that he was actually sentenced upon his conviction to such imprisonment. In these respects the case presented was strictly conformed to what the act of 1814 required it should be, to render the imprisonment lawful and proper. If the statement contained in the judgment record is to be considered, no change will be produced by it which can result in any advantage to

reason unlawful. This position is supposed to be maintained by certain provisions contained in chapter 337 of the Laws of 1855. Those relied upon as being attended with that result, are found in the fifth section of the act that provides that “ the Court of Special Sessions of the Peace in and for the city and county of New York, shall have power to hear, determine, and punish according to law, all complaints for misdemeanors, and shall possess exclusive jurisdiction thereof, unless the said Court of Special Sessions shall order any such complaint to be sent to the Court of General Sessions of the Peace, and unless the accused, when arrested and brought before’ the committing magistrate, shall elect to have his case heard and determined by the Court of General Sessions of the Peace in and for the city and county of New York.” But this does not sustain the position taken on behalf of the relator. For, it is not of all misdemeanors that exclusive jurisdiction was given to the Court of Special Sessions, but only of complaints for misdemeanors. It was simply over offenses of this description, for which complaints should be made, that this exclusive jurisdiction was extended. And that included only cases commenced by complaint, a course of criminal proceeding previously well known to the laws of the State. Before this statute was enacted, the laws had provided for making complaints in criminal cases. It was simply a formal application on oath for a warrant against a person supposed to have committed some crime. It was known to the common as well as the statutory law of the State.^[56] And when used to designate a criminal proceeding, the term complaint had a different legal signification. It formed the initiatory step in the institution of a criminal prosecution before a magistrate, and that is to be presumed to have been the legislative understanding of it, as it was used in the enactment of the law of 1855. Nothing can be found in the act itself that is inconsistent with that conclusion; and when that is the case, legal terms, made use of in the enactment of laws, are presumed to have been employed in their strict legal sense. That is a well settled rule, which lias long been applied by the courts to the construction of statutes. “When technical words occur in a statute, they are to be taken in a technical sense, unless it appears that they were intended to be applied differently from their ordinary or legal

acceptation. So, when legislating upon subjects relating to courts and legal process, we are to consider the legislature as speaking technically, unless, from the statute itself, it appears that they made use of the terms in a more popular sense.”^[56] Words and phrases, the meaning of which in a statute has been ascertained, are, when used in a subsequent statute, to be understood in the same sense,^[57]

According to this principle of construction, -the complaints mentioned in the act of 1855, must be understood to include only those made as the foundation of an application for a warrant in the mode prescribed by the Bevised Statutes; and it is only of complaints of that nature, that exclusive jurisdiction has been given to courts of Special Sessions, when they may be made for the commission of misdemeanors. This is rendered still more apparent by the provision contained in the same section, giving the accused, when arrested and brought before the committing magistrate, his election to be tried in the Court of General Sessions. This privilege or right is as extended as the complaints mentioned in the preceding portion of the section, including all cases the Special Sessions has exclusive jurisdiction to try, where that election may not be made. And it can in no case be made until the accused has been arrested and taken before a committing magistrate. The provision in substance, is, that the Court of Special Sessions shall have exclusive jurisdiction to try all complaints for misdemeanors, on which the accused shall be arrested and brought before a committing magistrate, when he does not elect to be tried in the Court of General Sessions. Taken together, that is the evident import of the provision made by the section. That it was not designed to divest the Court of Oyer and Terminer of its jurisdiction by means of its grand jury upon indictments found, is further manifested by the provision contained in the fourth section of the same act, declaring that such court may, by an order to be entered in its minutes, send all indictments for any crimes afterward' brought before it, to the General Sessions for trial. This provision was not confined to felonies, or to such offenses as the Special Sessions could not try, but it was extended to all crimes, in any way brought

before the Court of Oyer and Terminer. Further evidence of the propriety of restricting the exclusive jurisdiction of the Special Sessions to cases of complaints made before committing magistrates, is supplied by the seventh section of the same act. For, by giving the Court of General Sessions, as it does, the power to remit fines imposed by • the Court of Oyer and Terminer, in cases where imprisonment might be proper, the jurisdiction to try misdemeanors is necessarily assumed to be in that court. It is for such offenses, and for those only, that the Court of Oyer and Terminer can impose fines where imprisonment may also be proper. And they are the cases in which the General Sessions has been authorized to remit the fine, and, in lieu of it, to impose the substitution of ■ imprisonment.

Without impairing the power of the Court of Oyer and Terminer, this statute confers upon the Special Sessions the power to try all misdemeanors for which the offender may be arrested and taken by" warrant before a committing magistrate, provided he does not elect to be tried in the Court of General Sessions. That is the full extent of the power given by means of it to the Court of Special Sessions. It consequently left the statute defining the jurisdiction of the Court of Oyer and Terminer in full force, and that empowered that court to hear and determine all crimes and misdemeanors, triable in the county, which might, be presented by indictment.^[56] This general authority was sufficient to include the case" of tire relator, as long as it was not shown, and has not been claimed, that he ever was proceeded against by complaint before any magistrate for either of the offenses of which he has been convicted. It may be assumed, as long as the contrary has not been asserted, that the proceedings in this respect were regularly instituted and prosecuted by indictment in that court; and that being the case, the court was competent to punish the relator by fine and also imprisonment in the penitentiary. It had jurisdiction to try the charges contained in the indictment, and, after the conviction of the relator, to impose punishment upon him for the offenses of which he was found guilty. It was a court of competent jurisdiction for those purposes; and the legality or propriety, of its action cannot be investigated or determined upon the writ of habeas corpus.

The power of the court before which that writ may be returned, is fixed and defined in this State by clear and explicit statutory provisions, where the relator or applicant .may be detained in custody by means of criminal proceedings against him. And by them it has been declared that “ persons committed or detained by virtue of the final judgment or decree of any competent tribunal of civil or criminal jurisdiction, or by virtue of any execution issued upon such judgment or decree,” shall not be entitled to prosecute the writ of habeas corpus^[56] And no court or officer “ shall have power to inquire into the legality or justice” of any process, judgment, decree, or execution, mentioned in that section, by means of that writ,^[57] And that it shall be the duty of the court or officer forthwith to remand the applicant for the writ, if it shall appear that he is detained in custody “ by virtue of the final judgment or decree of any competent court of civil or criminal jurisdiction, or of any execution issued upon such judgment or decree.”^[58] The only exception made by thé statute, is that in favor of persons' in custody by virtue of civil process.^[40] And that has no application to the case made in favor of the relator, for he is in custody under final criminal process, issued by a court of competent jurisdiction. ' . According to these very plain provisions of the statute relating to the writ of habeas corpus, the court had no power on its return to make any examination or investigation into the legality of the relator’s imprisonment, as long as it appeared from the return that it was under the final judgment, and by virtue of process issued to execute it, of a court of competent criminal jurisdiction. That was the end of the inquiry which could be lawfully instituted. And as soon as the fact was ascertained, it was the imperative duty of the court to recommit the relator as it did.

The statute is so guarded upon this subject, that the writ of habeas corpus cannot be procured without, an oath that the relator is not committed or detained by virtue of the final judgment or decree of any competent tribunal of civil or criminal jurisdiction, or of any execution issued upon the same.^[41] And that oath was taken by this relator in his application for the writ which was issued. Great care was observed in imposing such restrictions upon the

writ as would prevent it from being made use of as a means of reviewing the final judgments of courts of competent civil and criminal jurisdiction, or of the process authorized and issued to carry such judgments into effect. The statute is very clear in this respect, and it has been so construed and applied by the courts.^[56] It is the only safe and consistent rule that can be maintained. If it were otherwise, final judgments of all courts could be reviewed and rendered nugatory to every officer having the power to allow a writ of habeas corpus. Another proceeding for that purpose has been provided in both civil and criminal cases, by which errors and excesses of jurisdiction can be examined and corrected, without endangering the stability and security of the final determinations of courts of justice.

It was insisted upon the argument of this cause, that the imprisonment of the relator was unlawful, because the jurisdiction of the court had been exceeded by the punishment which was imposed upon him. But on that subject the decision of the court of Oyel’ and Terminer was adverse to the relator, and even if that decision could not be maintained by authority, it cannot be either reviewed or disregarded by means of the writ of habeas corpus. The court had complete jurisdiction of the subject-matter of the indictment, • and of the person of the relator, which included the power of deciding what was the proper measure of the punishment that should be imposed upon him. If it erred in that, or in any other decision made during the course of the trial, a different mode has been provided for the correction of the error. It cannot be done by a collateral proceeding like the one now before the court,^[57] In this respect the case differs from that of Lange.^[58] There the jurisdiction of the court had been entirely exhausted by the sentence imposed and complied with before the second was pronounced; while here, the judgment, though divisible, was entire in its nature.

The case of the relator is in the same condition under the counts of the indictment on which it was claimed that he could not be

court had no power to punish more than a single misdemeanor, and that, consequently, all fines in excess of a single one of $250, and all imprisonment beyond a single year, were illegal and void. And 4th. That the penalty for the offense charged in the indictment, was a fine of $250 only.

The Court of Oyer and Terminer before which ,the habeas corpus was heard, after a full hearing, discharged the writ and remanded the prisoner. The proceedings having been brought into this court by certiorari, the questions raised in the court below, and there determined against the relator, are presented for review and determination.

The relator, as has been previously mentioned, is detained by virtue of the final sentence and judgment of a Court of Oyer and Terminer, pronounced upon a verdict of a jury, rendered upon the trial in that court of an indictment charging various misdemeanors. Upon the trial that court held, that it was proper and legal to unite several misdemeanors in one indictment, and to try and convict the accused upon each; and that, as several misdemeanors were in fact joined and charged in the indictment, upon which a separate verdict was rendered, judgment could be and was pronounced against him for each crime of which he was found guilty.

As the attempt to have Mr. Tweed released was made by habeas corpus, this preliminary question meets us: What power had the court, or officer before which such writ was returnable, by virtue thereof, in the premises ? The office of the writ, and the duties of the officer or court before which it is returnable, are, in this State, very clearly defined by statute; and the limitations upon the power conferred thereby, are stated with great precision. A reference to some of the provisions of our habeas corpus act, bearing upon the question before us, will show the difficulties which the relator has to encounter in presenting to the court the points upon which he claims he is entitled to be discharged.

First: By section 22, of that act,^[56] among the persons who are therein declared to be not “ entitled to prosecute such writ,” are those who are “ committed or detained by virtue of the final judgment or decree of any competent tribunal of civil or criminal jurisdiction.”

Second : By section 25,^[56] “ the petition must state in substance,” that the party applying for the writ “ is not committed or detained by virtue of any. process, j udgment, decree or execution, specified in the preceding twenty-second section.”

Third: By section 40,^[57] it is declared to “ be the duty of such court or officer,” before which the writ is returnable, “ forthwith to remand such party, if it shall appear that he is detained in custody, either,” (enumerating several) “by virtue of the final judgment or decreé of any competent court of civil or criminal jurisdiction, or of any execution issued upon such judgment or decree.”

Fourth : By section 41,^[58] where the party imprisoned is detained “by virtue of civil process from any court legally constituted, or issued by any officer in the course of judicial proceedings before him, authorized by law,” he may be discharged, provided (there are several grounds stated), “ the jurisdiction of such court or officer has been exceeded, either as to matter, place, sum or person.”

Fifth: By section 42,^[40] it is declared: “ But no court or officer, on the return of any habeas corpus or certiorari, issued under this article, shall have power to inquire into the legality or justice of any process, judgment, decree or execution, specified in the preceding twenty-second section ; nor into the justice or propriety of any commitment for a contempt made by any court, officer or body, according to law, and charged in said commitment, as hereinbefore provided.”

It is claimed on the part of the relator, that the expression contained in the twenty-second section, “any competent tribunal,” justifies the presentation of all the questions now submitted. It is argued that, whenever the “final judgment or decree” was not such an one as the tribunal, in the opinion of the court or officer granting the writ, pronouncing or rendering it, was “competent” to pronounce or render, then the person detained in custody should, be discharged. In giving to the statute this construction, the consequence cannot be overlooked. The twenty-third section^[41] of the habeas corpus act, confers the power to issue the writ not only upon the Supreme Court or any of its judges, but also upon “ any officer who may be authorized to perform the duties of a justice

of the Supreme Court at chambers, being or residing within the county where such prisoner is detained.” Will it be argued that our law makers intended that the judgments of the Courts of Oyer and Terminer, which constitute the highest grade of courts possessing original criminal jurisdiction, should be summarily reviewed and practically reversed by any officer who, whilst he is in the judicial system of inferior rank to the judge who presides at such Oyer and Terminer, is yet empowered to issue this writ 8 If this question be answered in the affirmative, such answer involves a want of symmetry in our judicial system, which as a rule provides for appeals only from the inferior to the superior tribunal. Apart from the incongruity which the practice of a local officer sending a prisoner back to the Oyer and Terminer for a resentence, would involve, another consequence, even more serious, would ensue. The officer allowing the writ has no such power; and in every case where in his judgment the power of the court had been exceeded, he would be compelled to open the prison doors, and direct the criminal to go free and unpunished. Did our legislature intend this ? It certainly did, if the position of the relator is sound.

Again: If the construction given to the statutes by the relator is sound, what necessity was there to make special provision, as has been done by section 41,^[56] allowing the court or officer granting the writ, in all cases where the prisoner is detained “ by virtue of civil process from any court legally constituted, or issued by any officer in the course of judicial proceedings before him,” to discharge him “where the jurisdiction of such court or officer has been exceeded, either as to matter, place, sum or person ? ” If in every case, when the court has exceeded its power in the extent of the judgment pronounced, such judgment could be reviewed upon habeas corpus, words have been wasted to confer just that power in “ civil ” cases only.

Lastly: If the words “ competent tribunal ” have the force attributed to them, what becomes of the forbidding incorporated in the forty-second section ? By that, “ no court or officer, on the return of any habeas corpus or certiorari, issued under this article, shall have power to inquire into the legality or justice of any process, judgment, decree or execution, specified in the preceding

was, we submit, this plain and natural construction just given, which induced the framers of the habeas corpus act to insert the clause giving the power, when the detention was upon “ civil process,” to inquire into the excess of .the jurisdiction assumed, and without which a party thus confined would also have been remediless.

The question we have discussed has not been considered so directly in this State as the same is now presented, and yet in several cases the language employed indicates a concurrence in the view we have taken. The People v. Cassels^[56] involved the validity of a commitment of a witness for a contempt in refusing to answer a question upon an examination before a justice of the peace. A reference to the full text of the statutes, before cited in part, will show that commitments for contempts, and upon final judgment, are placed upon the same footing as to their capability of being-reviewed upon habeas corpus. In that case, Judge Bbonson says :^[57] “A contempt was specially and plainly charged in the commitment, and it was the duty of the judge forthwith to remand the prisoner. (2 R. S., 567, § 40.) The statute expressly forbids an inquiry into the justice or propriety of the commitment in such a case. (§ 42.) If there had been no such statute, it is clear upon principle, that the judgment or decision of any 'court or officer of competent jurisdiction cannot be reviewed on habeas corpus. If there has been error, the remedy is by certiorari or writ of error.”

.In the People v. Spalding^[58] a Supreme Court commissioner had, upon habeas corpus, discharged a person committed for a contempt in not paying a fine imposed by the Court of Chancery. It was held both by the ■ chancellor and the Court of Errors (Chief Justice Nelson delivering the opinion of the latter court), that the commissioner was utterly without jurisdiction in the premises, as the statutes prohibited him from inquiring “into the justice or propriety of the commitment.”

In the very recent case of The People v. Fancher,^[40] the writer of this opinion had occasion to examine this same question, and nothing has transpired to shake his confidence in the soundness of the

that the grouping of offenses in a single indictment is so illegal as to make null the preliminary proceeding, thus rendering all subsequent steps thereunder void. To do this, it must be demonstrated that every indictment, in order to give the court jurisdiction over the offender and the offenses, must accuse of a single, and only a single crime; and when this is proved, and not before, will it follow that in case this practice is departed from, the court acquires no power to proceed, and its action is a legal nothing. When this has been done, the illegality of the major part of our criminal convictions has been exhibited, and the illegal and unauthorized imprisonment and judicial murder of many individuals, has been conclusively shown. This is no overstatement, for the practice of all courts, from time immemorial, has been to unite offenses m words at least, if not so actually. Scarcely an indictment is drawn or presented, which does not contain several counts, each one of which, in theory at least, presents a different accusation. Several offenses, being thus charged, all convictions thereunder are illegal and void, if the arguments of the relator are sound.

The reasoning which starts with the assumption that a court obtains no jurisdiction over several offenses and the offender when they are charged in a single indictment, certainly overlooks all precedents and practice. The right to frame an indictment, with different counts to meet the proof, is based upon a directly opposite theory. Every indictment which contains more than a single count, assumes to charge a separate and different offense in each. A demurrer, or a motion in arrest of judgment, in every such case would necessarily prevail, if different offenses could not be joined; for, upon the face of the bill, there are several offenses charged. There is no necessity, however, for abstract reasoning to show that the joinder of offenses in a" single presentation does not deprive the court of jurisdiction. The authorities are numerous to show that this practice, so far from rendering the whole proceeding void, is not even irregular, but, on the contrary, it is the well settled course of procedure of criminal courts.

Burns’ Justice^[56] thus states the rule: “If there be one offender and several offenses committed by him, as burglary and larceny, they may be contained^in one indictment.” Hawkins, in his Pleas

' of the Crown, ' in the chapter which treats of indictments, in stating the requisites thereof,^[56] says: “ Fifthly, that regularly every indictment must either charge a man witli some particular offense, or else with several of such offenses, particularly and certainly expressed, and not with being an offender in general.” Hale’s Pleas of the Crown^[57] thus states the law as to the joinder of offenses : “ If there be one offender and several capital offenses committed by him, they may be all contained in one indictment, as burglary and larceny; larcenies committed of several things, though at several times, and from several persons, may be joined in one indictment.” In East’s Pleas of the Crown^[58] the same rule is recognized, and the case of Thompson is cited. In that case, “upon a general verdict of guilty, it was objected that there were two several capital charges in the' same indictment, which it was said tended to deprive the prisoner of so many challenges as he would be entitled to if the indictments were distinct, namely, twenty upon each. Another objection was, that it would tend to perplex the prisoner in his defense. But seven judges (being all who were present at the conference) held the indictment good.” Chitty’s Criminal Law^[40] says: “ In cases of felony, no more than one distinct offense, or criminal accusation, at o.ie time should regularly be charged upon the prisoner in one indictment, because if that should be shown to the court, before filed, they will quash the indictment, lest it should confound the prisoner in his defense, or prejudice him in his challenge to the jury; for he might object to a juryman trying one of the charges, though he might have no reason so to do in the other, and if they do not discover it until afterward, they may compel the prosecutor to elect on which charge he will proceed. But this is only matter of prudence and discretion which it rests with the judges to exercise. For, in point of law, there is no objection to the insertion of several distinct felonies of the same degree, though committed at different times, in the same indictment against the same offender; and it is no ground of either demurrer or arrest of judgment. * * * In the case of misdemeanors, the joinder of several offenses will not in general vitiate in any stage of the prosecution. For in offenses inferior to

felony, the practice of quashing the indictment, or calling upon the prosecution to elect on which charge he will proceed, does not exist. But on the contrary, it is the constant practice to receive evidence of several libels and assaults upon the same indictment. It was indeed formerly held, that assaults on more than one individual could not be joined in the same proceeding, but this is now exploded; for though two persons cannot join in a civil action, the reason is that the damages are several, which cannot apply to criminal proceedings where no compensation is given to the prosecutor, and public security is the object to be obtained.” And again the same work^[56] declares: “So when he is charged with several offenses at the same time of-the same kind he may be sentenced to several terms of imprisonment, one after the conclusion of the other.” Archbold’s Criminal Pleadings^[57] contains the same doctrine: “ If different felonies or misdemeanors be stated in several counts of an indictment, no objection can be made to the indictment on that account in point of law. In cases of felony, indeed, the judge in his discretion may require the counsel for the prosecution to select one of the felonies and confine himself to that. This is what is technically termed putting the prosecutor to his election. c But this practice has never been extended to misdemeanors.”

It cannot be necessary to refer in detail to the numerous cases decided in England, sustaining the rule as laid down by thp eminent and standard authors to whom we have referred. A reference to the works we have cited will show that these- cases are very numerous, but the universally acknowledged authority of the writers quoted, renders that labor unnecessary. We content ourselves with the citation of a single very recent and famous one, known as that of the “ Tichborne Claimant.” The trial was before the Court of Queen’s Bench, and the judges composing the court were the Lord Chief Justice of England, the Hon. Justice Mellor, and the Hon. Justice Lush. “ The indictment upon which the proceedings were founded was filed Easter Term, 1872, against Thomas Castro, alias Orton, alias Tichborne. First count of indictment charged defendant with perjury, committed in,^evidence given by him on the recent trial of Tichborne v. Lushington. Second count charged defendant with perjury in an affidavit sworn by him in the

chancery suit, Tichborne v. Tichborne. Defendant pleaded Not Guilty.”^[56] The jury † found a separate verdict of guilty on each count, and a general verdict of guilty on both counts. The sentence and judgment of the court was pronounced by Mr. Justice Mellor,^[58] and was couched in the following language: “ The sentence of the court, which I now pronounce, is, that for the perjury alleged in the first count of this indictment upon which you have been convicted, you be kept in penal servitude for the term of seven years, and that for the perjury alleged in the second count of this indictment, of which you have also been convicted, you be kept in penal servitude for the further term of seven years, to commence immediately upon the expiration of the term of penal servitude assigned to you in respect of your conviction upon the first count of this indictment; and that is the sentence of the court.”

It may not be improper to add, that so well settled does the law of England seem to be in that regard, that no question was made as to the regularity of the sentence, and not a single objection interposed, or exception taken thereto. And it will further be observed, that the indictment upon which the prisoner was convicted, was of two separate and distinct offenses: the one of perjury in giving, evidence upon a trial, and the other of perjury in making an affidavit in a separate and distinct action. It- furnishes, therefore, an answer to the position of the counsel for the relator, that there was no case upholding the joinder of disconnected offenses, and the awarding of cumulative sentences thereon.

The law of Massachusetts, Connecticut and Pennsylvania is in accordance with that of England, as the following cases will show: In Carlton v. The Commonwealth,^[40] the Supreme Court of Massachusetts decided: “ Two or more distinct offenses may be included in one indictment, in several counts, where the offenses are of the same general nature, and where the mode of trial and the nature of the punishment are also the same. When a defendant is found guilty, generally, on an indictment which charges him with several distinct offenses, it is not necessary that separate sentences should be awarded. A single sentence is legal, if it do not exceed the sum of the several

sentences which might be awarded.” This case was followed in Booth v. The Commonwealth;^[56] in Josslyn v. The Commonwealth;^[57] in Crowley v. The Commonwealth;^[58] in Kite v. The Commonwealth;^[40] in Commonwealth v. Hills;^[41] and in Commonwealth v. Carey.^[42]

The same rule prevails in Connecticut. It was held in State v. Tuller :^[43] “It is essential to the administration of justice, that several distinct offenses should be joined in cases of misdemeanor ; and in some cases of felony, that the same offense should be laid differently in different counts; and the rule precludes the right of the prisoner to insist upon an election of counts, or that the jury should be required to find specially on each count. Where there are several counts in the information, and a general verdict is rendered, the jury will be presumed to have found the prisoner guilty upon all the counts; and the court will impose a sentence, in accordance with the facts proven upon the trial.” In the very recent case (January 9,1872) of Commonwealth v. Birdsall,^[44] the Supreme Court of Pennsylvania have examined the question and reaffirmed its correctness.

Many- other of the States have adopted tlie same rule. The ordinary limits of an opinion do not permit us to cite in detail the numerous cases decided in this country. Very many of them are referred to in the United States Digest of Criminal Law,^[45] and in the American notes to Hale, Chitty and Archbold, before referred to. With a single citation therefore, from a standard American treatise upon the criminal law,^[46] we will then refer to some of the Hew York cases. In discussing this question, that author^[47] says: “ The law imposes certain penalties for assault and battery, which penalties are designed to cover the assault- as well as the battery. To sentence the defendant for the penalties for an assault as averred in the first count, and then again for an assault and battery as averred in the second count, would expose him to a double punishment for the same offense. The only legitimate course, when the several counts are simply successive stages of one offense, is, in accordance with the view already given, to impose the

sentence on the count containing the highest offense, dropping the rest. This, to repeat once more the distinction so important to keep in mind in cases of this class, is on the supposition that the several counts are simply for separate stages or modifications of the same offense. Here, it stands to reason there can be no cumulative punishments; yet it equally stands to reason, that where two distinct offenses are coupled in the same indictment, and there is a general verdict of guilty, then a cumulative punishment can be imposed, or, according to the Pennsylvania practice, which is more exact, a distinct punishment on each count.”

Much stress was, however, made upon the argument by the counsel of the relator, that whatever might be the common law of England and other States upon this question, the common law of Hew York was different, and did not allow the practice adopted in this case. It is scarcely necessary, perhaps, in answer to the objection which assumes the wide difference between the common law of England and of Hew York, to cite section 17, of article 1, of our Constitution. Whatever result in answer to the assumed antagonism of the two could be evolved by reasoning thereon, is rendered unnecessary by express adjudication of our highest courts. Kane v. The People^[56] was a case in our Court of Errors, then our highest appellate tribunal. The plaintiff in error in that case was convicted upon an indictment containing two counts, and averring, in words at least, two distinct offenses. His counsel (the late Judge Paige) made, as his fourth point,^[57] the one we are now discussing in these words: “ There is a misjoinder of offenses in the indictment; there being two counts against the defendants below, as directors of different companies.”

The chancellor, whose opinion was unanimously concurred in, in answer to this position says :^[58] “ The fourth objection is for a misjoinder of counts in the indictment. If there ever was anything in this objection, it should have been addressed to the discretion of the court below before conviction. In cases of felony, when two or more distinct and separate offenses are contained in the same indictment, the court in its discretion may quash the indictment, or compel the prosecutor to elect upon which charge he will proceed ; but in point of law, it is no objection that two or more

offenses of the same nature, and upon which the same or a similar judgment may be given, are contained in different counts of the same indictment. It therefore forms no ground of a motion in" arrest of judgment; neither can it be objected by way of demurrer, or on a writ of error. (Rex v. Young, 2 Peake’s N. P. Rep., 228 n.) It is every day’s practice to charge a felony in different ways in several .counts, for the purpose of meeting the evidence as it may come out upon the trial. Each of the counts on the face of' the indictment purports to be for a distinct and separate offense, and the jury very frequently find a general verdict on all the counts, although only one offense is proved ; but no one ever supposed that formed a ground for arresting the judgment. If the different counts are inserted in good faith, for the purpose of meeting a single charge, the court will not even compel the prosecutor to elect; and in the case of mere misdemeanors, which are only punishable by fine or imprisonment, the prosecutor is permitted to join and fry several distinct offenses in the same indictment.”

In The People v. Costello,^[56] in pronouncing the judgment of the Supreme Court, Judge Beardsley says:^[57] “ Distinct offenses were charged in the different counts of this indictment, and the evidence went to show that two crimes had been committed: 1st. That an instrument had been used at one time for the purpose charged. 2d. That on other occasions, and at other times, drugs had been resorted to for the same purpose. The offenses charged were misdemeanors, and it is well settled law, that several misdemeanors may be joined in the same indictment, and a conviction for all may take place at the same trial. The prosecutor is not bound, in such cases, to elect a single offense from amongst the number charged, and proceed for that alone, but may ask a conviction for as many as are proved. (Roscoe’s Cr. Ev., 216; Rex v. Jones, 2 Camp., 132; Kane v. The People, 8 Wend., 211 ; 1 Chit. Cr. Law, 249 , 254; Rex v. Levy, 2 Stark., 458; Commonwealth v. Gillespie, 7 Serg. & Rawle, 476 .) ”

With these two cases from our own reports, which no subsequent one that we have seen questions, we cannot possibly hold that the presentation of the several charges against the relator, in one indictment, was so irregular and informal as to render the whole proceed

ings void, and the conviction a nullity. They settle the common law and practice of ISTew York to be in accordance with that of England. Possibly, a case in ISTew Hampshire, or Indiana, or Kentucky, may enunciate a different doctrine, but the law of ISTew York is in harmony with that of England, Massachusetts, Connecticut, Pennsylvania and other States. The State v. Lincoln,^[56] certainly does not decide that the court loses jurisdiction when several offenses are charged in one indictment, but simply holds that, in such a case, “ the judge may, at any stage of the proceedings, put the prosecutor to his election, or quash the indictment.”

Neither is the case of James v. Ward^[57] in point to sustain the position of the relator’s counsel, because, as will be seen by reference to it, the opinion is based upon a provision of the Kentucky statutes, which requires the jury to fix the punishment. If, however, these cases were directly applicable, in view of the contrary practice which has been firmly settled in England for ages, adopted in many other of our States, and sustained by two direct decisions in this, we should hold that an immense preponderance of authority existed in favor of the course pursued in this cause; and that certainly upon this proceeding at least — that of habeas corpus, which only presents jurisdictional questions — the relator is without remedy, for the reason which we have considered. Whether or not a writ of error or. any proceeding may be taken to review the discretion exercised by the judge upon the trial, is not decided. That question is not before us, and upon it no opinion is expressed.

Second. But it is also claimed that the defendant was tried by an incompetent jury. It is argued that because chapter 475, of the Laws of 1872, provided that a “ previous formation or expression of an opinion or impression in reference to the circumstances upon which any criminal action at law is based,” etc., shall not disqualify a person summoned as a juror, provided he shall declare on oath that he verily believes that he can render an impartial verdict according to the evidence submitted to the jury on such trial, and that such previously formed opinion or impression will not bias or influence his verdict, and provided the court shall be satisfied that the person so proposed as a juror does not entertain such a present opinion as would influence his verdict as a juror; and, also, because

chapter 427, of the Laws of 1873, provided for the trial of all challenges by the court, that the jury chosen in conformity with these laws was illegal and their verdict void.

■ We do not see how it is possible to present this question upon habeas corpus. It enters so largely into the merits of the trial, that its review upon this proceeding is impossible. If there is any virtue in the point, then, when any erroneous decisions are made as to the selection of a juror, or whenever any officer authorized to grant the writ thinks such an error has been committed, he can open the prison doors and let the criminal free. Such a proposition shocks the moral sense, and its statement is its sure condemnation.

The point, however, as to the legality of the jury, is without force. The mode and manner of the selection of a jury is under legislative control, and a change of law, in that respect, is not obnoxious to any constitutional objection,^[57]

It is also claimed that the judge holding the Oyer and Terminer before which Mr. Tweed was convicted, did not allow him the number of peremptory challenges to which he was entitled; that he should have had five for each “ offense ” charged. How is it possible to present this question now % If it can be argued that errors were made in the selection of jurors, and therefore there was no jury, so, too, it can then be argued, that the evidence admitted by the court was illegal, and therefore the prisoner was convicted upon none. Having reached this conclusion, counsel for a prisoner have only to satisfy some officer empowered to grant this writ, that such an error has been committed, and the proceedings of grave trials before our highest courts are reviewed by local officers, and judgments reversed at their pleasure. Will learned counsel gravely argue in favor of such" a proposition ?

Third. It is further urged that it was not competent for the court to sentence the defendant to imprisonment upon the first, second and third counts in each set of counts. The only penalty to which he could have been subjected was a penalty of $250. The reason given to sustain the point is, that Mr. Tweed “ was not liable to conviction and punishment for misdemeanors, under 2 Revised Statutes, 696, section 38, because a special provision has been made for the punishment of the delinquency charged.” This reason is

founded, as claitned, upon 2 Eevised Statutes, 696, section 38,^[56] and 1 Eevised Statutes, 368, section 16.^[57] The former reads thus: “ Where any duty is or shall be enjoined by law, upon any public officer, or upon any person holding any public trust or employment, every willful neglect to perform such duty, where no special provision shall have been made for the punishment of such delinquency, shall be a misdemeanor, punishable as herein prescribed.” The latter is as follows : “If any supervisor shall refuse or neglect to perform any of the duties which are or shall be required of him by law, as a member of the board of supervisors, he shall, for every such offense, forfeit the sum of $250.”

To this point there are several answers. 1st. A court of com»petent jurisdiction has decided otherwise, and its final judgment cannot be reviewed upon this proceeding. 2nd. The fines which it concedes could be imposed, are not paid, and the detention for such non-payment would be proper. 3d. The point assumes a fact which is not correct. Ho special provision by 1 Eevised Statutes 368, section 16, is made for the punishment by criminal prosecution of “ any supervisor who shall refuse or neglect to perform ” his duties or any of them. That section prescribes a penalty to be recovered in a civil action for a simple refusal or neglect to perform a duty.^[58] The provision in 2 Eevised Statutes, 696, section 38, makes the willful neglect of “ any public officer ” a crime — a misdemeanor. The punishment of that crime is not provided for by the civil action to recover the penalty given by the previous statute for a simple refusal or a neglect of duty. The omission to perform the duty which makes the act criminal, must be willful, whilst that element — willfullness — is absent from the enactment which creates the penalty. To make the point effectual, the relator must show that some “punishment” for the misdemeanors of which he is convicted other than those inflicted, is “ prescribed.” The section before quoted certainly does not profess to do this, and is entirely inapplicable.

We have now examined the questions which the proceeding involves, affecting and concerning the legality of the convictions and the judgments pronounced. We are clearly of opinion, that