The People v. Van Keuren.

1. Those convicted of forgery in the first degree, by impris onment in a State prison for a term not less than ten years. 2. Those in the second degree, by a like imprisonment not more than ten and not less than five years." (Ib.)

Thus it will be seen that, if the defendant is liable to a conviction on each of the fifteen counterfeit bank bills, taken from his possession at the same time, and under the same circumstances, he might be sentenced to imprisonment in the State prison for one hundred and fifty years! The law is chargeable with no such cruelty.

J. H. Anthon, for the People, contended that the plea was bad; that the offenses set forth in the former and present indictments were entirely distinct and different, and that the case of The People v. Benham (7 Conn. R., 414) was distinguishable from the case at bar, inasmuch as there was a conviction in the former case and an acquittal in the latter case.

By the Court. The defendant had in his possession at one time several bank notes or bills of different banks, which were taken from him at the same time. He has been tried for having one of them in his possession and acquitted, and the question arises whether he can be again tried for possessing each of the other notes of the different banks which he had at that time. Is the possession of each bill or note, holden at one and the same time, a distinct offense, and punishable as a distinct crime? I cannot perceive how they could be deemed distinct offenses. Had the defendant uttered or paid away all of the bills found in his possession to one person at the same time, it cannot be claimed that he could be convicted of more than one offense; and yet it is claimed that, having them in his possession, although he never offered to utter them, he may be punished for more than one offense. The act of possessing several notes, found in defendant's possession at the time of his arrest, must be considered as one and the same offense, as much as the act of stealing a number of articles at the same time and place. (State v. Benham, 7 Conn. R., 417.) This case was decided by the Supreme Court of Errors, in

The People v. Rulloff.

Connecticut, in a case similar to the one in question, except that in that case the verdict of the jury was that of guilty. A distinction between the two cases was urged by the district attorney on that ground, but I cannot perceive that there is any difference. The pleas of autrefois acquit and autrefois convict rest upon the same legal principles. The same law applicable to the one is applicable to the other. (Whar. Am. Cr. Law, 540.) Judgment must, therefore, be rendered in favor of the defendant and against the People on the demurrer.

SUPREME COURT. Cayuga Special Term, January, 1860. Before Knox, Justice,

THE PEOPLE v. EDWARD H. RULLOFF.

The question of a prisoner's guilt or innocence of a crime for which he is indicted, can in no case be decided on an application for a discharge on habeas

corpus.

The presumption of innocence to which a prisoner is entitled on a trial before a jury, is not applicable to proceedings on habeas corpus. To subject a prisoner to a second trial, where a former conviction on the indictment has been reversed, and a new trial ordered, by a court of review, on the application of the prisoner, is not a violation of the constitutional provision which declares that "no person shall be subject to be twice put in jeopardy for the same offense."

The provisions of the Revised Statutes, under which a prisoner is declared to be entitled to his discharge if not brought to trial before the end of the next term of the court, unless satisfactory cause be shown by the district attorney (3 R. S., 5th ed., 1029, 1030), are not a "statute of limitations;" a failure to comply with them would be a mere irregularity, and would not entitle a prisoner to be discharged on a writ of habeas corpus.

Nor is it a sufficient cause for discharge on habeas corpus that the prisoner was not present in court when the trial of the indictment was postponed till the next term of the court, though it was the right of the prisoner to be present.

THE prisoner was brought up on a writ of habeas corpus, and the grounds on which he claimed to be discharged are sufficiently stated in the opinion of the court.

The People v. Rulloff.

E. H. Rulloff, in person.

D. Wright, for sheriff.

KNOX, J. The question to be decided arises upon a writ of habeas corpus, issued to the sheriff of the county of Cayuga, to inquire into the cause of the detention by him of Edward H. Rulloff, the relator, the return of the sheriff to such writ, the allegations and proofs of the prisoner, and the allegations and proofs offered by the district attorney of the county of Tompkins. From these the following facts appear:

That on the 18th day of December, 1845, the prisoner was indicted at a Court of Oyer and Terminer, of the county of Tompkins, for the murder of Harriet Rulloff, in the county of Tompkins, on the 24th day of November, 1845. That in the month of September, 1847, the prisoner was arraigned on these indictments, and pleaded that in the month of February, 1846, he had been convicted of a Court of Oyer and Terminer, held in the county of Tompkins (HIRAM GRAY, justice), of hav ing abducted her or taken the said Harriet Rulloff out of the country, and against her will, which conviction still remains in full force and virtue. That upon the trial for abduction the jury were charged among other things, in substance: "That if they should find that at the time of her disappearance, the said Harriet had in fact been murdered in the county, then they should acquit the prisoner of abduction, and that to convict of abduction, they should find that at the time of her disappearance, she had in fact been taken out of the county alive, and against her will."

That in June, 1856, at a Court of Sessions in Tompkins, the prisoner was indicted for the murder of his infant daughter, upon which, at the Tioga Circuit, held in October, 1856, the said indictment having been removed into the Supreme Court for trial, the said Rulloff was found guilty. That a writ of error with stay of proceedings, having been afterward allowed, the Court of Appeals reversed the judgment, and ordered a new trial, and remitted the case for further proceedings. That in July, 1859, the prisoner sued out a writ of

The People v. Rulloff.

habeas corpus, and on being taken before the general term of the Supreme Court, at Cooperstown, the case was set down for trial at the October term, of the Tioga Circuit, 1859. That at the Tioga Circuit an order was entered by direction of the presiding justice, on motion of the district attorney, without any appearance of said Rulloff, but in his absence and without his consent or knowledge, continuing the said indictment to the next term of the Circuit Court, to be held in the county of Tioga. That since the filing of the remittitur, the district attorney has allowed the May general term, of the Supreme Court, in and for the 6th district, several circuits and special terms of said court, and the spring term of the Tioga Circuit to pass, keeping the prisoner in custody upon this charge, without moving for a new trial or bringing the prisoner into court, or making any other motion in the case, except the motion made as aforesaid, to continue said indictment in the Tioga Circuit, in October, 1859.

That an indictment was found against the prisoner, at the Court of Sessions of Tompkins county, in July, 1859, for breaking jail on the 5th day of May, 1857. That a warrant was issued on said indictment, and delivered to Edward P. Hoskins in July, 1859, on which the prisoner was arrested in July, 1859, and having been confined in the jail of Tompkins county, was transferred to the jail of the county of Cayuga, by an order of the county judge of the county of Tompkins, on the ground that the jail of the county of Tompkins was unsafe for his confinement.

On these facts, the prisoner asks to be discharged, and rests his demand on these grounds:

1st. As to the murder of Harriet Rulloff. The conviction for abduction, and the indictment for the murder of Harriet Rulloff, being both for the same substantial matter, though charged as different offenses, the conviction for abduction, while unreversed, is an absolute bar to the prosecution for murder.

2d. The failure to bring the prisoner to trial within the time prescribed by the statute, entitles the prisoner to be discharged. That by the statute he acquires this right, which no subsequent

The People v. Rulloff.

proceedings can divest him of, and that, so far as relates to the offense charged, he is ever after entitled to a discharge.

3d. That as to the murder of his infant daughter, the prisoner has been once tried, within the intent and meaning of the Constitution, and is therefore entitled to his discharge.

4th. That the order made in his absence, at the Tioga Circuit, was and is void, as without jurisdiction, and so he is entitled to his discharge, for the reasons stated in the second point.

5th. That as to the charge of breaking jail, the neglect of the district attorney to bring him to trial at either of the subsequent terms of the Tompkins Sessions, or show cause for delay, entitles him to a discharge.

The importance of this case to the prisoner, and the great interest manifested by the public in regard to it, rather than any difficulty in arriving at what I deem a proper conclusion, have led me fully to state the causes of the detention of Rulloff, and his allegations and my reasons at length, for a decision which otherwise would have been made at the close of the hearing.

It would, perhaps, be a sufficient answer to the application for his discharge, to say, that, admitting all he claims, to wit: that under these proceedings we have a right to try the question of a prisoner's guilt or innocence, though charged on indictment, and that he is innocent of the charges alleged against him and should be discharged, after the district attorney has suffered two sessions of the court in which the indictments are triable, to pass without bringing him to trial, or showing cause for continuing the indictments, there is no evidence before me, that since his arrest and confinement on the indictment for breaking jail, any terms of the Court of Sessions in the county of Tompkins, at which he could have been tried, have been held. There is no evidence, therefore, on which to found the allegation that he has a right to be discharged, which has become absolute and which cannot be divested. But I shall put my refusal to discharge him on no such narrow ground.

All the objections made by the prisoner rest upon funda