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of death was evident. The body had been examined, delivering the opinion precludes it by a reference to with the marks of violence plainly apparent, the these facts as showing that the statements made were bruised head, the fractured skull, and the broken club voluntary in every legal sense, and held that a mere lying near it, with hair still adhering to it. It was consciousness of being suspected of a crime did not so evident that a crime had been committed. From the disqualify him that his testimony, in other 'respects time that a felonious homicide was established, the freely and voluntarily given before the coroner, could proceedings assumed the form of a criminal investiga- not be used against him on his trial on a charge subtion. Hendrickson v. People, per Gardiner, J., 10 sequently made of such crime. On that ground he N. Y. 49.

held the evidence properly admitted, at the same time
By section 777 of the Code of Criminal Procedure it referring with approval to the McMahon case, and dis-
became the duty of tbe jury, if the death was occa- tinctly limiting the rule of exclusion to those witbin
sioned by criminal means, to find who was guilty its bounds.
thereof, and on such finding the coroner was empow- The present case is identical in all its essential fea-
ered to issue his warrant for the arrest of the guilty tures with the McMahon case. In both cases the pris-
party if not already in custody. From that time the oner had been arrested without warrant as a sus-
prisoner occupied the position of a person accused of pected murderer. While under arrest he was taken
crime,and his situation was similar to that of such a per- by the officer having him in charge before the coro-
son before an examining magistrate, “and although per's inquest, and examined on oath as to circum-
the tribunal might be different, yet upon principle his stances tending to connect him with the crime. The
rights would be the same in both cases. 10 N. Y. 48. present case is even more clear than the McMahon
And in Teachout v. People, 41 id. 9, Woodruff, J., in case, for here the homicide had been shown before he
commenting upon the case of McMahon v. People,says: was examined, the prisoner was informed that he was
The coroner was acting substantially in the place of charged with the murder, the alleged instrument of
an examining magistrate, and the fact that the pris- death was produced, and the prisoner was interrogated
oner was held under arrest without warrant could not as to bis motive for the alleged killing, his where-
make his protection against such an inquisition less abouts, and other inculpating matters.
imperative.” And at page 12 the learned judge says, There has been no case overruling the McMahon
that declarations made under examination with such case, and we are not referred to any decision, either
a charge depending should be excluded except where in this country or in England, at variance with it,
obedience to the statutory precautions is observed. although there are many which sustain it, and even

The admissibility of examinations in evidence upon go further in the direction of excluding examinations
trial of the offender has been passed upon in many under oath, before a magistrate, of persons afterward
English cases, but the whole subject has been so thor- put upon trial on criminal charges. Re: v. Lewis, 6
oughly discussed in three cases in this court that it is C. & P. 161; Rex v. Danis, id. 177; Wheiting's case, 8
not necessary to refer particularly to the English au- id. 238; Hawarth's case, 4 id. 254, note.
thorities.

The court at General Term in the present case seem In Hendrickson v. People, 10 N. Y. 13, the wife of to regard the case of People v. McGloin, 91 N. Y. 241, the defendant died suddenly in the morning, and in as sustaining the course pursued by the prosecution, the evening of the same day a coroner's inquest was and consequently overruling the McMahon case; but held. The defendant was called and sworn as a wit- a brief examination will show that there is no analogy bess upon the inquest. At that time it did not appear betweeu the two cases. The case of McGloin was not tbat any crime had been committed, or that the de- that of the examination of a prisoner on oath before fendant had been charged with any crime, or even a magistrate, before whom he was taken involuntarily suspected, except so far as the nature of some of the while in custody, and interrogated by the magistrate, questions asked of him might indicate such a suspi- who to all appearanco had power to require him to ancion. On his subsequent trial on an indictment for

But it was a clear case of voluntary confession. the murder of his wife, the statements made by him The prisoner was not taken before any magistrate. at the corouer's inquest were held admissible, on the While under arrest he said to the inspector of police, ground that he was not examined as a party charged who had him in charge, that he would make a statewith the crime; that it had not appeared even that a ment. The inspector then said he would sevd for crime had been committed, and that he had simply Coroner Herman to take it. The coroner was then testified as a witness on the inquiry as to the cause of sent for, and came to police headquarters, and took the death.

down in writing the confession dictated by the prisIn People v. McMahon, 15 N. Y. 384, the defendant oner, the coroner asking no questions, and not acting was arrested by a constable, without warrant, on a in any official capacity, but as a mere amanuensis to charge of having murdered his wife. The constable take down the coufession and prove the contents. took him before the coroner, who was holding an in- Whether sworn or unsworn is immaterial, as the conquest on the body, by whom he was sworn and exain- fession is in no respect compulsory, but was voluuined as a witness. It was held that the evidence thus tarily offered by the prisoner. It was not taken begiveu was not admissible on the prisoner's trial for the fore a magistrate upon a judicial investigation agaiust murder, and his conviction was reversed upon that the person accused of the commission of the crime. It ground. In the judgment all the judges who heard lacked this essential element of the McMahon case, the case concurred.

and is in no respect in conflict with it. The next case is Teachout v. People, 41 N. Y. 7. In Section 395 of the Code of Criminal Procedure is also that case the defendant appeared at the coroner's in- referred to as superseding the McMahon case. That quest, in pursuance of a subpæna to testify, and vol- section provides that “a confession of a defendant, untarily attended. He was not under arrest, but was whether in the course of judicial proceediugs, or to a informed by one Dalley that it was charged that his private person, can be given in evidence against him, wife had been poisoned, and that he would be arrested unless made under the influence of fear produced by for the orime. Before he was sworn he was informed threats, or uuless made upon a stipulation of the disby the coroner that there were rumors that his wife trict attorney that he shall not be prosecuted therecame to her death by foul means, and that some of those rumors implicated him, and that he was not The rule thus established is founded upon the comobliged to testify unless he chose. He said he had mon-law rule on the subject of confessions, but is no objection to telling all he knew. The learned judge much more defuito and stringent. The rule, as laid

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down in Hawkins, is stated to be that “a confession, the course of judicial proceedings'' admissible in eviwhether made under an official examination or in dis- dence. Those words do not necessarily refer to a ju. course with private persons, which is obtained from a dicial examination of the prisoner on the subject of defendant either by the flattery of hope or by the im- | the charge made against him. The object of section pression of fear, however slightly the emotions may be 395 is to declare what confessions shall be deemed volimplanted, is not admissible in evidence."

uutary, and therefore admissible, whether made out By the section of the Code quoted, the fear which of court to private person, or in court, or in the is required to exclude the confession must be a fear course of any judicial proceediog between any parties. produced by threats, and the hope must be based upon The examination of a prisoner on oath before a magiea stipulation of the district attorney promising immu- trate on the subject of the charge made against him nity from prosecution for the crime confessed. But is condemned in the McMahon case, and those upon I do not apprehend that this provision was intended which it rests, in the Teachout case, and by the statto apply to any but voluntary confessions, or to utes which prohibit such examinations. Code Crim. change the statutory rules relating to the examination Proc., $s 188, 196, 198; 2 Rov. Stats. 708, $$ 14, 15, 16. of prisoners charged with crime. The Criminal Code The three cases which have been cited, the Henretains the provisions of the Revised Statutes applica- drickson case, the McMahon case, and the Teachout ble to such examinations, which provisions are framed case, draw the line sharply, and define clearly in wbat with reference to the constitutional provision that no cases the testimony of a witness examined before a persou shall in any criminal case be compelled to be a coroner's inquest can be used on his subsequent trial, wituess against himself. Art. 1, $ 6.

and in what cases it cannot. Where a coroner's inIn all the cases in which reference has been made to quest is held before it has been ascertained that a the subject, it seems to be conceded that an examina- crime has been committed, or before any person has tion of a person arrested on a criminal charge, con- been arrested charged with the crime, and a witness ducted in violation of the statutory provisions, would is called and sworn before the coroner's jury, the tesnot be admissible in evidence against him on his trial | timony of the witness, should be afterward be charged for the offense. To take a prisoner before a magistrate, with the crime, may be used against him on his trial, swear him, subject him to a minute interrogation as and the mere fact that at the time of his examination to the circumstances as relied upon as evidence of his he was aware that a crime was suspected, and that he guilt, and then use such an examination ou his trial, was suspected of being the criminal, will not prevent would be a departure from our system of criminal ju- his being regarded as a mere witness whose testimony risprudence which should not be tolerated, and may be afterward given in evidence against himself. whether the investigation were conducted before a If he desires to protect himself he must claim his committing magistrate or before a coroner's jury, privilege. But if at the time of his examination it could make no substantial difference, provided it ap- appears that a crime has been committed, and that he peared that a homicide had been committed, and the

is in custody as the supposed criminal, he is not reprisoner was brought before the inquest as an ac- garded merely as a witness, but as a party accused, cused person, and the object of the inquisition was to called before a tribunal vested with power to investiascertain his guilt.

gate preliminarily the question of his guilt, and he is The McMahon case held distinctly that an exami- to be treated in the same manner as if brought before nation thus conducted before a coroner's jury could

a committing magistrate, and an examination 100 not be used on the trial of the prisoner, and after that

taken in conformity with the statute cannot be used decision has stood for nearly a quarter of a century as against him on his trial for the offense. On this the law of the State, it would require, for the purpose | ground the judgment should be reversed, and a new of overruling it, something much more definite than trial ordered. any thing that can be found in the Penal Code or the Andrews, Danforth and Finch, JJ., concur, Earl, J., Code of Criminal Procedure.

reads dissenting opinion for affirmance; Ruger, C. J., There is nothing indefinite in the doctriue of that case concurs; Miller, J., not voting. as defined and limited in the Teachout case, por am I Judgment rerersed. able to see that an adherence to it would in any way embarrass the administration of criminal justice in the State, while on the other hand it is not difficult to NEW YORK COURT OF APPEALS ABSTRACT. see that a departure from it would be subversive of some of the fundamental principles of our criminal MASTER AND SERVANT-NEGLIGENCE.-A railroad jurisprudence. Nor is there any thing in the exclu- company is not required to furnish engines for its sion of such evidence inconsistent with section 395 of business of any particular power; and the company is the Code.

not liable for an injury to one of its employees caused The evidence sought to be excluded is not a confes by the diminished power of one of its engines. Burke sion, certainly not a voluntary confession, but an offi- v. Wetherbe, 96 N. Y. 562; Marsh v. Chickerivg, 101 cial examination on oath of the prisoner while in cus- id. 396; Sweeney v. B. & Jones Em. Co., id. 520. In the tody, in which, although he admits some facts in re- case of Marsh v. Chickering, Judge Miller, following gard to the relations between him and the deceased, prior authorities, said: “The rule is that the master he denies all knowledge of the crime, he denies bav- does not owe to his servants the duty to furnish the ing seen the deceased after he saw him on the railroad best-known or conceivable appliances; he is simply track on the day when he left his home, and he denies required to furnish such as are reasonably safe and ever having been on the ground where the body was

suitable, such as a prudent man would furnish if his found. These denials were much more important to own life were exposed to the danger that would result the prosecution than any of the admissions contained from unsuitable or unsafe appliances.” Suppose in in the examination, for they were met by the evi- that case the ladder had when new been furnished dence of the prisoner's subsequent admissions to Sher- with hooks and spikes, and they had by use been broiff Brown, which, it true, showed that his previous ken off, how could it have been claimed that the liastatements under oath before the coroner's inquest bility of the master would be different? Would the were false. This mode of examining and involving a master bave been bound to replace hooks and spikes prisoner arrested on a charge of crime is not sanc- which had come off, while he owed no duty to his sertioned by the provision of section 395 of the Penal vant originally to place them upon the ladder? So Code, which declares voluntary confessious made “in here was the defendant bound to restore this engino

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by repairs to the power which it originally possessed, the sentence. When the defendant was first called for while it owed no duty to purchase a new engine of sentence, the court inadvertently adjudged him to greater borse power than this then possessed ? It is confinement at bard labor in the penitentiary for a plain that the answer to these questions should be in term of six months. This of course was erroneous, for the negative. Jones v. Granite Mills, 126 Mass. 84; no person can be sentenced to confinement a hard laKelley v. Silver Spring Co., 12 R. I. 112; Smith v. bor in the penitentiary for a term less than one year. Railway Co., 69 Mo. 34; Fort Wayne, etc., R. Co. v. Comp. Laws, 1879, ch, 31, $ 291. Within an hour after Gildersleeve, 33 Mich. 133; Western, eto., R. Co. v. sentence was pronounced the attention of the court Bishop, 50 Ga. 465; Wander v. Railroad Co., 32 MD. was called to the mistake, and the prisoner and his 411; Philadelphia, etc., R. Co. v. Keenan, 103 Penn. counsel being still in court, the case was again called, St. 124. Oct. 5, 1886. Bajus v. Syracuse, etc., R. Co. and the court proceeded to sentence the prisoner to Opinion by Earl, J.

imprisonment for a term of one year. It does not ap MORTGAGE- FORECLOSURE OF-RECEIVER'S CERTIFI

pear that a formal order was made setting aside the CATES-WAGES OF EMPLOYEES.--The lien of the mort

first sentence, but the court pronounced the second gagees of a railroad cannot be impaired or affected by sentence upon the same verdict, stating in the record, the claims of employees of the company for wages due

as a reason for its action, that the statute did not authem at the time of the appointment of a receiver in

thorize the judgment first pronounced. This was in proceedings to foreclose a mortgage. The receiver has

effect a setting aside of the first judgment; and the no power to issue oertificates of indebtedness to pay only formal judgment recorded in the case is the one such employees, which will be a lien on the road prior

under which the prisoner is in custody, sentencing to the lien of the mortgage. Oct. 5, 1886. Metropoli..

him to imprisonment for one year. The general rule tan Trust Co. v. Tonawanda Valley, etc., R. Co. Opin

is that the records of a court may be corrected or reion by Danforth, J.

vised at any time during the term at which the judgment was rendered. The sentence first pronounced

against the defendant was not executed or put into ABSTRACTS OF VARIOUS RECENT DE- operation, and “ so long as it remained unexecuted, it CISIONS.

was, in contemplation of law, in the breast of the

court, and subject to revision and alteration." Com. CRIMINAL LAW-ASSAULT AND BATTERY-RIOT.-A

v. Weymouth, 2 Allen, 147. We think it is clearly conviction for assault and battery only may be had on

within the discretion and power of the court, until an indictment which charges in one count a riot and an

the end of the term, to amend and revise or increase assanlt and battery committed riotously. The general the sentence which had not gone into effect. 1 Bish. rule is familiar that any defendant in an indictment

Crim. Proc., $ 1298, and cases cited. As nothing had may be convicted of any offense which is well charged

been done under the sentence first pronounced, and as therein, and is proved, although the whole charge con

the final sentence did not impose a penalty in excess tained in the indictment is not proved. But the de

of that provided by law, the rights of the defendant fendant contends that the present case falls within an

were not infringed upon, nor has he any ground for exception to the rule, and that no conviction for as

complaint. Kaus. Sup. Ct., Oct. 7, 1886.

State y. sault and battery only can be had on an indictment

Hughes. Opinion by Johnston, J. which charges in one count a riot and an assault and

BALE OF INTOXICATING LIQUORS TO MINOR BY battery committed riotously. The decision in Rex v.

AGENT.-Defeudaut, who was duly licensed to sell Heaps, 2 Salk. 593; 8. C., nom. Rex v. Sudbury, 1 Ld. liquors to be drunk on the premises, was indicted for Kaym. 484, is chiefly relied on to support this view, selling to a minor. It was claimed that the sale was and it certainly has been often considered by text

made by the bartender without defendant's authority. writers as going to this extent, though on examina

On the trial the court instructed the jury that a sale tion it will be seen that it does not necessarily do so.

by a bartender in his master's shop, and in the regular The indictment in that case charged several with riot course of his master's lawful business, is prima facie a and a riotous assault, and the jury found a general sale by the master, although the sale is an illegal verdict of guilty against two and acquitted the rest. sale; but that such a sale may be explained by showOn a motion in arrest of judgment, it was considered

ing that it was unauthorized. Held, error; that clear that the two defendants who were convicted although it was evidence for the jury to consider, and could not be held guilty of a riot since the others were which might warrant it in iuferring that the sale was acquitted, and two persons are not enough to make a authorized by the defendant, yet that it was going too riot; and being thus in contemplation of law dis- far to behold that it raised a presumption of fact that charged of the riot, it was held that no judgment upon

such was the case. The fact that a man employs a the general verdict of the jury could be entered

servant to conduct a business expressly authorized by against them for the assault and battery. No special statute, and that the servant makes the unlawful sale Verdict of guilty of the assault and battery was re- in the course of it, do not necessarily overcome the preturned, and the question did not arise whether such a

sumption of innocence merely because the business is special verdict could have been sustained. In princi- , liquor selling, and may be carried beyond the statute ple no good reason is perceived for taking this case limits. Com. v. Putnam, 4 Gray, 16; Com. v. Dunbar, out of the general rule more than other cases where 9 id. 298. It is true that a master would be liable civilly there is a charge of assault and battery, with circum

for such a sale as supposed in the instruction, but his stances of aggravation, which the evidence fails to civil liability exists even when he prohibits the sale, and prove. The whole current of moderu decisions is op- therefore it does not stand upon a presumption that posed to establishing such an exception, and the de- he authorized the sale, but upon the general ground cision in Shouse v. Commonwealth, 5 Penn. St. 83, of a master's liability for the unauthorized torts of cited with approbation in Dinkey v. Commonwealth, his servants., whatever that may be, George v. Goodey, 17 id. 126, is directly in point. See Bennett & Heard

1:28 Mass. 289; Roberage v. Burnham, 125 id. 277; Pub. Lead. Cas. 551-554; id. 38. Mass. Sup. Jud. Ct., Oct. Stat., ch. 100, $ 24; Byington v. Simpson, 134 Mass. 21, 1886. Commonwealth v. Hall. Opinion by C. Al- 169, 170. Com. v. Holmes, 119 id. 195, cited for the len, J.

prosecution, went no further than to decide that eviSENTENCE-CHANGING AT TERM.--The final dence that the defendant's son and clerk sold intoxicomplaint made in the case is that the court erred in cating liquors in a public house kept by the defendant

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was evidence of sale by the defendant sufficient to be lants; In re Estate of Elias W. Cady, deceased; In re submitted to the jury. See Com. v. Edes, 14 Mass. Application of Robert B. Gardner, administrator; 406. Nothing was said as to a presumption of fact. Dorlesca M. Van Alstyne, executor, respondent, v. N. The evidence too was stronger than the case at bar. Y.C. & H. R. R. Co., appellant; In re Judicial SettleFor there the defendant set up no license, and any ment of Accounts of John Hohman et al., executors; sale was unlawful, and the question was whether the James B. Lookwood, as sole trustee et al., v. William defendaut gave authority to his clerk to sell at all. It T. Brantley, administrator et al.; Betsey Squires, apmight well be thought that the clerk would hardly un- pellant, v. Coleman Robinson, executor, respondent, dertake to sell in the way of business in his employer's -Each of the two judgments affirmed; that against house without some authority. But it is obviously the defendant as executrix without costs; that against much more likely that a servant employed to make her as an individual with costs—Angeline C. Johnson lawful sales should occasionally go beyond his author- et al., administrators, respondents, 5. Maria J. ity, which he might do by his taking a minor for an Myers, executrix, appellant. Two cases. - -Order readult, than that he should go into a wholly unauthor- versed-Angeline C. Johnson v. Maria J. Myers. ized business. Com. v. Nichols, 10 Metc. 259, probably Judgments of General and Special Terms modified acsuggested the ruling of the court, and is perhaps a lit- cording to opinion herein, and with these modifica. tle nearer the case at bar than Com. v. Holmes, as the tions tho interlocutory judgment appealed from afdefendant seems to have sold liquors wholesale, aud to firmed, without costs of this appeal to either party-Le have employed his clerk in that business, although not Dette A.Bostwick,resp., v. Emily P.Beach, exc., app.-licensed to sell at retail. The court, in sustaining the Judgment reversed, and judgment rendered for dedefendant's exceptions, said a sale at retail by the fendant, with costs, Edgar T. Brackett, administra. clerk was only prima facie evidence of a sale by the tor, respondent, v. Chester Griswold, impleaded, apmaster. It bardly said, and could not have decided, pellant.--Judgment affirmed, with costs-Eli W. that such a sale was prima facie a sale by the master, Blake, respondent, v. Same.-Judgment of General or that it raised a presumption of fact. Moreover, if and Special Terms modified in accordance with opinit were held that there was such a prssumption of fact ion herein,costs of the appellants to be paid out of the in cases like Com. v. Holmes and Com. v. Nichols, it proceeds of the sale-Francis J. Byrnes et al., resp., F. would not follow that there was the same presump- Beujamin M. Stillwell et al., appellants. — Judgment tion in the present case, still less that it was so plain and order of General Term reversed, and that of surthat the jury could be instructed to act on it. Such rogate affirmed with costs-Phebe Augebine et al., represumptions are questions of fact and of degree. spondents, v. John M. Jackson, executor, appellant. Mass. Sup. Jud. Ct., Oct. 21, 1886. Commonwealth v. Judgment reversed, new trial granted, costs to Briant. Opinion by Holmes, J.

abide the event-Mary Shaw, administratrix, respondSTENOGRAPHER--COPY OF TESTIMONY-CONTRACT.- ent, v. Charles L. Sheldon et al., appellants; Nellie Court stenographers may recover for copies of testi- Card et al., executors, respondents, v. Manhattan Ry. mony made by them under special contract, and the Co., appellant; Jennie E. Gardinier, administratrix, public has no concern therein so long as they discharge etc., respondent, v. New York Cent. & H. R. R. Co., their official duties properly, since the laws under appellant.-Judgment affirmed-People, respondent, which they are appointed, and which prescribe their v. Charles A. Buddenseick, appellant; People, reduties, do not require that they shall devote all their spondeut, v. Charles G. Sherman et al., appellants.time to the public service. Smith v. Portage Co., 9 Judgments of General and Special Terms reversed, Ohio, 25; Davis v. Munson, 43 Vt. 676; England v. and judgment entered in accordance with opinion Davidson, 11 Adol. & E. 856; 1 West Con., $ 502; herein; costs of all parties in the Supreme Court and Sharp's Adm'x v. Kirkendall, 2 J. J. Marsh. 150; in this court to be paid by the trustees out of the surEvans v. Inbabitants of Trenton, 24 N. J. Law, 764. plus income of the trust estate, Albert Delafield et Mich. Sup. Ct., Oct. 21, 1886. Langley v. Hill. Opinion al., executors, respondents, v. Richard Delafield Shipby Sherwood, J.

man, impleaded, appellant.-Judgment reversed,

with leave to the defendant to answer on payment of COURT OF APPEALS DECISIONS.

costs_Emily D. Jex et al., executors, appellants, V.

Mayor, etc., of New York, respondents.Order affollowing decisions were handed down Tues- firmed with costs-Peter Moller, Jr., et al., executors, day, Nov. 28, 1886:

respondents, v. Joseph W. Duryee, appellant, Abram Judgment affirmed with costs--Isaac N. Phelps et B. Conger et al.; Sarah W. Duryee, appellant, v. Isaac al., appellants, v. Robert B. Borland, respondent; Ogden, respondent; Alexander C. Morrison, respondSarah Solomon, administratrix, appellant, v. Manhat. ent, v. Jane Van Benthuysen et al., executors, appeltan Ry, Co., respoudent; Julia Riley, administratrix, lants; William C. Hoag, respondent, v. Mary Kehoe, V. Albany Savings Bank, respondent; Samuel G. appellant: People v. Knickerbocker Life Ins. Co.; In Craig, administrator, respondent, v. Manhattan Ry. re Settlement of accounts of Dorothy A. Huntington, Co., appellant; In re Final Accounting of Elbridge T. executrix.- Order of General Term striking out disGerry, trustee of Jean B. Goelet, deceased, under will bursements reversed and the judgment as entered of Peter P. Goelet; Peter Moller, Jr., et al., executors, at Special Term affirmed, with costs of appeal to this respondents, v. Joseph W. Duryes et al., executors, court-Roxanna C. Larking, respondent, v. Paul C. appellants; Clarissa Lammer et al., appellants, v. Maxon, appellant (two cases). --Motion to dismiss Helen G. Stoddard, executrix et al., respondents; granted-People v. William C. Moore. Harry Marion Simms, executor, etc., respondent, v. United Sates Trust Co. of New York, appellant; William E. Smith, respondent, v. Thomas Nelson et al.,

NOTES. executors, appellants; Ansonia Brass and Copper Co., appellant, v. William C. Conner et al., executors, re- A Judge at North Yakima, Washington Territory, in spondents; John Cox, respondent, v. Mayor, etc., cf a recent case in which the right of a woman, who was New York, appellant; Susan E. Bedell, administra- born in a foreign country, to sit in the capacity of a trix, respondent, v. Long Island R. Co., appellant; juror was questioned, held that if the husband of the Joseph Young, administrator, respondent, v. N. Y. C.

woman was a citizen of this country, the woman ac. & H. R. R. Co., appellant; James P. Conner et al., quired the same status as that of her husband, and executors, respondents, v. Joseph Dubeel et al., appel- was therefore qualified to vote and sit as a juror.

THE

The Albany Law Journal. training of our bench and bar, throw upon the

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Would not such a form, considering the habits and

,

judges a burden of interpretative work under which ALBANY, DECEMBER 4, 1886. the whole judicial system would break down?

Again, with this form, classification becomes of the

utmost importance, for every proposition or rule CURRENT TOPICS.

should be deducible from a more general rule that

precedes it in the order of arrangement.” Mr. Platt R. JOHNSON T. PLATT, of New Haven, sends pays Mr. Field very high compliments, but we wish

he were not “almost ” but “altogether” of his velopment of Jurisprudence in the United States,' way of thinking. He also says a good word for read before the American Bar Association at its our own “American Reports," which we are gratelast meeting. Mr. Platt starts out with assuming ful for. But we think he exaggerates the difficulthat the law is in an "uncertain condition." Herein ties of codification. A very distinguished and very we agree with him, although Mr. Cortlandt Parker able judge of this state in his last years fell into a says there is no trouble of that sort in New Jersey. doubting habit of mind, which an acute observer We infer that Mr. Platt is in favor of eventual described as follows: “He doesn't exactly see how written law, but he thinks that the undertaking is the plaintiff is going to be able to make out a cause hedged about with very serious difficulties, owing of action in any case. There is no use in waiting to "the undue activity of legislative bodies, and for a perfect code or one which will please everythe carelessness and ignorance exhibited in framing body. The only way ever to get a good code is to statutes." He thinks that the time has not arrived enact the best now practically attainable. This “when we can, to the best advantage, or with

will undoubtedly be improved, but the time will much hope of benefit, put the whole law into stat

never come when there will not be a considerable utory forms." We would like, right here, to ask

class who will believe that “man never is, but alMr. Platt when he thinks it will come, and why ways to be, blest " with a code. he has any reason to expect it, if it has not arrived? When will the accumulations, the contradictions and the confusion, ever be less under the present Another voice from New Haven reaches us in a no-system? (A laboring man, hearing Henry Rus-paper entitled “The Incorrigible; who is he, and sell sing, “There's a good time coming boys, wait a what shall be done with him?” read by Professor little longer,” arose and said, “Mr. Russell, about Wayland at the recent meeting of the National when do you think it will get here?”) Mr. Platt Prison Association at Atlanta. The first question continues: “Much as codification has been consid- is easily answered by the essayist; "the incorrigiered and discussed, there are many questions relat- ble” is an habitual criminal. As to what is to be ing to it still unsettled, and upon which there is no done with him, we were afraid the professor was agreement, even among its professed advocates." going to recommend whipping him, but he does Well, when will they ever agree? But he goes on: not- he recommends shutting him up for life, af"What is the best classification and arrangement ter two or three convictions, which is much more for a code? Will not the statement of some parts sensible. He exhibits convincing statistics of habitof the law in the form of brief general propositions ual criminality. He does not much believe in combreed more uncertainty than afflicts us at present? mutation for good behavior. On this point he says: Would not the putting of the law in statutory form, “Nothing can be more fallacious or more misleadwhere, as in this country, the importance of care- ing than a belief that what is technically called in ful and judicious legislation is but imperfectly un- prison parlance 'good behavior,' has any decisive, derstood, greatly increase the tendency to frequent or controlling, or considerable value in determining and unnecessary changes in the rules of law? the question of character, This is especially true Should a draft code contain simply a statement of in the case of all penal institutions where an allowthe existing rules of law, or be accompanied by sug- ance of time is conceded for good conduct. Every gestions for their improvement and amendment? | warden in the country knows by long and uniform What would be the effect of codification upon the observation that the most hardened criminals are tendency now apparent to bring the laws of the the very men who rarely transgress a prison rule. several States upon many important topics into con- They have learned the hard lesson of self-control. formity? Is the proposed code to embrace the They will gladly submit to any self-denial which whole of the law, both statutory and common, or shortens the time of confinement, which hastens only the statute law and so much of the common the day of deliverance, the day which reunites law as the draughtsman finds it convenient to ex- them to their old pals, and introduces them to new press in the form of general rules?

Take schemes of plunder. I once asked a prisoner, an the mode in which the rules of law are to be ex- old offender, whose conduct was irreproachable, pressed in the code. Shall they be contained in and to whom I had been referred by a confiding brief, general propositions, which look very simple official as a specimen of what wholesome prison disto the untrained, but in fact are very hard to un- cipline could effect in the way of reformation, how derstand and apply to a particular state of facts? he occupied his mind during his leisure hours.

VOL. 34 — No. 23.

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