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Opinion of the Court, per ALLEN, J.

acted," and declared to be thenceforth “in full force and effect." (Laws of 1870, chap. 30.)

The “city tax levy” act was subsequently enacted by the same legislature. (Laws of 1870, chap. 383.) The fortyninth section of the latter (S. L., p. 917) declared that the court should be held by two police justices of the city, to be designated by the mayor, and“ in case of any disability of either of the two police justices to hold court," it was declared to be “legal for the other to hold it while such disability continues." The acts passed in 1871 (chaps. 302 and 438) do not affect the question before us. They did not change the constitution of the court, except as they conferred power upon the mayor to designate a judge to hold the court in case of the sickness or disability of the police justices.

By chapter 30 of the Laws of 1870, the act of 1858 constituting the Court of Special Sessions in the city of New York was revived, not simply as the legal result of the repeal of the law of 1865, but it was in terms revived and re-enacted as the law in force, and at the time of the passage of the revivor.

The only question, then, is as to the validity of the provision in chapter 383 of the Laws of 1870, reorganizing and reconstructing the court. The constitutional prohibition upon the legislature in respect to private and local bills has come so often under review, and its purposes and objects, as well as its operation and effect, judicially declared, that nothing remains but to apply the principles of the adjudications and give effect to the plain intent of the provision to cases as they arise. It is declared that no "private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title.” (Const., art. 3, $ 16.) This inhibition is absolute, and every act and part of an act passed in disregard of it is void. The enactment is not merely directory, to be followed or not as the legislature may think proper, but is mandatory, and a compliance with it is necessary to the validity of any act coming within its terms. (People v. Hills, 35 N. Y., 449; People v. Supervi

Opinion of the Court, per ALLEN, J.

8078 of Chautauqua, 43 id., 10.) The constitutional prohibition includes all acts whether local or private, and if either “local or private,” the requirements of the Constitution must be complied with. (People v. Allen, 42 N. Y., 378.) If a bill is local in its operation and effect, although public in its character, it is within the constitutional enactment. The provision in the act of 1870 was public as it concerned the administration of the criminal laws, and the trial and punishment of offenders, and provided for the organization and construction of a court of criminal jurisdiction. But it was local inasmuch as it related to a court peculiar to the city of New York with jurisdiction only coextensive with the limits of that city, and of offences committed within its boundaries. An act regulating the duties of a public officer under the general laws of the State, if limited in its operation to a part of the State, or to a single county, is local, and must be passed in the form prescribed by the Constitution, although the subject matter of the enactment is public, and affects public interests. (Gaskin v. Meek, 42 N. Y., 186; People v. O'Brien, 38 id., 193.)

The act in which the section relating to the organization of the Court of Sessions in New York is found, is a local act in all its parts, and is in no respect or in any of its provisions general, although all its provisions are public, and this section does not differ from the other parts of the act in this respect. The act is such as is annually passed by the legislature, and is known as the “city tax levy."

A similar act is annually passed for the county of New York known as the “county tax levy.” The one is entitled * An act to make further provision for the government of the county of New York.” (Laws of 1870, chap. 382.) The other, that under consideration, “An act to make further provision for the government of the city of New York.” (Laws of 1870, chap. 383.) The purpose and object of each is to provide for the expenditures of the city and county governments respectively. They direct the levy of taxes, and make provision for the disbursement of the sums raised.

Opinion of the Court, per ALLEN, J.

The titles of the acts are apt and expressive of their purpose and object, indicating clearly that they are revenue acts, acts providing ways and means for the support and carrying on the governments of the city and county as organized. The title of the act does not indicate an intent to change the form and alter the character of the city government in any way, or to amend the charter. Where the legislature intends to do either, the title expresses the intent and characterizes the act. (See Laws of 1870, chap. 137; Laws of 1871, chaps. 573, 574.) To provide is “ to procure beforehand for future use," "to furnish,” “to supply,” “to procure supplies or means of defence,” and to make provision is to provide means or supplies. The merchant makes provision for his bills by putting the drawee in funds to pay them. Provision is made for the poor by the raising of moneys for their support.

Provision is made for a government by placing at its disposal the “ways and means” for the payment of its officers and its necessary expenditures. It would do violence to language to hold that an act“ to make provision for the city government” was an act to create, to reorganize, or to change the government or its organic law in any respect. The very words recognize a city government as in existence, and for the support of which provision is to be made.

The governmental organization, as its exists, is to be provided for by supplying it with the proper means for its necessary disbursements and expenditures. The organization of the Court of Sessions anew in the city of New York had no connection with the provision for the government of the city contemplated by the title of the act, and the section designed to accomplish such reorganization was therefore void. It is to be regretted that the result from this conclusion may lead to inconveniences and to the discharge of some who are undergoing the punishment due to their crimes, but it is the right of all to have the law declared as it is whatever may be the consequences, and greater evils would follow il practical abrogation of a plain constitutional requirement

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Statement of case.

by yielding to a supposed necessity. The tendency, and the natural tendency, of legislation is to make certain acts receptacles for enactments of all kinds, and especially for such as might not meet with favor, standing by themselves. The object of the Constitution was to prevent this, and full effect shonld be given to its benign and salutary intent.

The judgment of the Supreme Court and of the Special
Sessions must be reversed.

All concur.
Judgment reversed.

137

49 148 651

49 137 153 17 j 153 23

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiffs in Error,

v. Thomas BENNETT, Defendant in Error.

49 137 156 258

49 137 160 426 160 436

A decision of the Supreme Court, reversing a conviction in the Oyer and

Terminer and granting a new trial, is a judgment within the meaning of chapter 82, Laws of 1852, and, as far as that court is concerned, is

final. A writ of error, therefore, lies to review such judgment. Upon a trial in the Court of Oyer and Terminer the court has no power to

grant a motion to discharge the prisoner upon the ground that the corpus delicti has not been proven. After the trial has commenced the verdict of the jury must be pronounced ; but this may be done under the advice and direction of the court. All questions of law arising upon a criminal trial are to be determined by the court; and it is the duty of the jury to regard and abide by such determination. Where the case, therefore, presents a question of law only, the court may, and it is its duty to instruct the jury to acquit the prisoner, or direct an acquittal, and enforce the direction; and a refusal to give such instruction or direction in a proper case is error. If the prosecution leave some element necessary to constitute the crime entirely unproved, is a clear case for the interpo

sition of the court. The same strictness in regard to exceptions will not be enforced in

criminal as in civil cases ; but the court will look at the substance, with the view to promote justice. A motion in form for the absolute discharge of a prisoner may be regarded, as in substance, a request to direct an acquittal, or that the court instruct the jury, as matter of law,

that the prisoner could not be convicted. Of the crime of murder or manslaughter, the corpus delicti has two compo

nents, viz., death as the result, and the criminal agency of another as the cause. There must be direct proof of one or the other. Where one is

SICKELS.–VOL. IV. 18

Statement of case.

proven by direct evidence, the other may be by circumstances. In determining a question of fact upon a criminal trial from circumstantial evidence, the facts proved must not only all be consistent with, and point

to, the guilt of the prisoner, but must be inconsistent with his innocence. A motive for the commission of the crime cannot be imagined ; but the

facts from which such motive may be inferred must be proven. A suggestion, therefore, in a charge to the jury, of a motive, not warranted by the evidence, which may have influenced their minds to the prejudice of the prisoner, is error. (GROVER and PECKHAM, JJ., dissenting.)

(Argued March 27, 1872; decided April 1, 1872.)

ERROR to the General Term of the Supreme Court in the third judicial department, to review judgment of that court, reversing a judgment of the Court of Oyer and Terminer in and for the county of Ulster, entered upon a conviction of defendant in error of the crime of manslaughter in the second degree, and granting a new trial.

The facts sufficiently appear in the opinion.

F. L. Westbrook for the plaintiffs in error. The death of the wife having been proved by direct and positive evidence, the other questions involved may be proven by circumstantial evidence. (Burrill on Cir. Evidence, 682, 720, 722; Wills on Cir. Evidence, 168; Best on Presumptions, 205; Ruloff v. People, 18 N. Y., 180–199; 2 Beck's Med. Jurisprudence, 190; Taylor's Med. Jurisprudence, 187; People v. Green, 1 Park., 22, 25; People v. Williams, 3 id., 107.) All circumstances are competent, both tending to show the act complained of is a crime and to fix it upon the prisoner. . Sheperd v. People, 19 N. Y., 535; Stevens v. People, 19 id., 549; People v. llendrickson, 8 How., 412; Jacobson's Case, 2 City Hall Rec., 131; Wharton's Law of Homicide, 316, 318; 2 Beck's Med. Jurisprudence, 281, 285; 3 Wheeler's Cr. Cases, 65; Burrill Cir. Evidence, 583, 720, 252, 283.) Among the most common evidence is that which shows a motive on the part of the accused. (Kennedy v. People, 39 N. Y., 254; People v. Gonzales, 35 id., 62, 63; McCann v. People, 3 Park, 312; People y. Hendrickson, 8 How., 412; Jeffords v. People, 5 Park, 559.) It is the exclusive province

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