Hoag v. McGinnis.

and because it was difficult, not to say impossible, from its nature, that the damages for a breach could be ascertained by a jury. The latter may be said of failing to give the five days' notice; but we want the clear intent of the parties, that such an omission was to be punished by such a dispropor tionate fine. It is evidently upon that clear intent that Dakin v. Williams went; and that could the chief justice have brought himself to doubt, he would never have consented to apply the penalty. It is commonly hard enough in such cases that we should be bound by the letter; though such is the result of the cases, where liquidation is impossible. The creditor is a very apt apprentice in the art of enlarging any opening which the law leaves him for encroachment; while the debtor, especially if he be poor or embarrassed, is most complying; and could he have his way, would prove his own worst enemy. Hence our usuary laws, and the system of equitable relief against penalties. To allow of the use of penalties as damages, at the unlimited discretion of the parties, would lead to the most terrible oppression in pecuniary dealings. The fair and just rights of the creditor are worthy of all protection; but no more than the debtor's right to exemption, from what is beyond an honest compensation to his creditor.

On this declaration, I am clear there should be judgment against the plaintiff.

Judgment for defendant; with leave to the plaintiff to amend.

THE PEOPLE U. WHITE.

An indictment for murder at the common law viz: charging the act to have been done with malice aforethought, is not vitiated by the addition of the words, that the act was done from a premeditated design to effect the death of the deceased; such latter words may be rejected as surplusage. An entry endorsed on an inquisition of murder taken by a coroner, purporting to be the examination of witnesses, will not be recognized as duly taken under the statute if it have not a jurat or certificate of the coroner, that the witnesses were sworn, and it be not shown to be in the hand writing of the coroner, or taken under his direction, and that the witnesses were in fact sworn, and that their testimony is stated truly. It seems that depositions taken in pencil, instead of being properly written out, would not be considered as taken in compliance with the statute. The fact that a judge in his charge to a jury in a criminal case, after alluding to the influence of proof of good character in a doubtful case, called the attention of the jury to the want of such proof in the case before them, is no cause for granting a new trial, where in other respects the charge is unexceptionable.

The associate judge of the common pleas of the city of New York, appointed under and by virtue of the act of 1st April, 1839, has authority, two aldermen of the city being associated with him, to hold a court of oyer and terminer in that city.

Where a trial is commenced in the oyer and terminer of New York, the circuit judge, the associate judge, and two aldermen presiding, and the circuit judge retires from the bench during the progress of the trial, and does not again return whilst it continues, the trial is notwithstanding regular, and if a conviction takes place, the sentence of the law will not be suspended on account of such departure of the circuit judge.

THE prisoner was convicted in July, 1839, at the NewYork oyer and terminer, of the murder of one Peter Fitzpatrick. The first count of the indictment charged, that the prisoner, on the 13th of February, 1839, with force and arms, &c. at the first ward of the city of New York, in and upon Fitzpatrick, feloniously, wilfully and of his malice aforethought, and from a premeditated design to effect the death of Fitzpatrick, did make an assault; and with a certain knife, &c., in and upon the groin of Fitzpatrick, feloniously, wilfully and of his malice aforethought, and from a premeditated design to effect his death, did strike and thrust, &c. thereby giving him a mortal wound, of which he instantly died.

The People v. White.

At the trial, the counsel for the prisoner took a bill of exceptions, in which it was stated that the cause came on for trial at a court of oyer and terminer, held in and for the city and county of New-York, on the 10th July, 1839, before the Hon. Ogden Edwards, circuit judge for the first circuit, William Inglis, one of the associate judges of the court of common pleas for the city and county of NewYork, appointed under and by virtue of the act of 1st April, 1839, entitled "an aet to repeal the seventh section of the act relating to the court of common pleas for the city, &c. and to authorize the appointment of an additional judge ; and Egbert Benson and Elijah F. Purdy, aldermen, &c. Under this organization, Judge Edwards presiding, a jury was empanelled, a tales directed, challenges decided, witnesses examined, and the opinon of the court pronounced by Judge Edwards on several questions that had arisen as to the admissibility or rejection of testimony, without any intimation that he intended to abandon the bench during the progress of the trial; he then withdrew and continue dabsent during the remainder of the trial. Judge Inglis and the two aldermen remaining, and they presiding, the trial was continued.

The murder was perpetrated at the house of one Lawrence Gaffney. Timpson, a witness for the prosecution, testified that he saw White there; and saw several men shoving him out of the door; after which he did not see him again. The district attorney then put this question to the witness; "What did you see after that?" The prisoner's counsel objected to this question, because nothing that was said or done in the absence of the prisoner was admissible. The court overruled the objection and the prisoner's counsel excepted.

William H. Wright, another witness for the people, testified that he knew White; that he, the witness, was at Gaffney's, (where there was a house-warming,) several times in the course of the night, when the homicide was committed; and gave evidence tending materially to fix the offence upon the prisoner. Wright had been examined before the police; and his deposition taken there was read in evidence

The People v. White.

by the counsel for the prisoner. He there stated that he did not know White's name at the time; but now knew it. He was now cross-examined as to his deposition before the police, and said; "I did not express any doubt about who did the act. I did not then recollect his name." He admitted that he had been examined before the coroner, on the occasion of the ante-mortem inquest on Edward Dennon, who, as it now appeared, was wounded by the prisoner in the same affray. The inquest was taken February 13th, and was admitted by the district attorney, to have been duly filed by the coroner. There was an endorsment on it in pencil in these words: "Witnesses. Wm. H. Wright. Is a watchman. About 3 o'clock this morning, came along, &c. and found they were quarrelling, &c. and told the young men to go away. One of them came up and jerked the door open, and saw him make a motion to stab; and from the action of his arm have no doubt he did stab him, &c. Soon after saw him make another stab at another man, and he fell. The first man did not fall. Did not see but one man use any instrument. Edward Dennon was one of the party, &c. was stabbed, and did not know by whom, &c. Doctor Charles Fitzpatrick says he was called to this house about 3 o'clock; found the wounded man Dennon, &c."

The inquisition and the endorsement thereon were offered in evidence for the purpose of contradicting Wright's testimony on this trial. The district attorney objected to the reading of the endorsement, on the ground that it should first be proved that the testimony was reduced to writing from the witness' statement. That it was evidently, on its face, an imperfect statement; and not a part of the inquisition. That it had no official signature, or authentication, and might be a mere private memorandum of the coroner, or of some other person made for his own use. The court decided that the inquisition was admissible, but excluded the statement endorsed thereon. The prisoner's counsel excepted.

In charging the jury, the judge told them that the offence was within the first count of the indictment, should they be VOL. XXII.

22

The People v. White.

of opinion that the killing took place either from premeditated design to effect the death either of Fitzpatrick or any other person; or that it was perpetrated by an act imminently dangerous to others, evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual. He added, “that in all doubtful cases, when the scales of justice are nicely poised, the evidence of good character and a virtuous life, had great weight in turning the balance in favor of the prisoner. That in this case there was an absence of such testimony on the side of the prisoner." To this observation there was also an exception. The jury found the prisoner guilty. The prisoner's counsel having procured a bill of exceptions to be signed, the sentence of the law was suspended, and the proceedings were brought up by certiorari, to obtain the advice of this court. The case was argued here by

D. Graham, jun. & S. Stevens, for the prisoner.

J. R. Whiting, (district attorney of the city and county of New-York,) for the people.

By the Court, COWEN, J. The first question made by the prisoner's counsel arises upon the record, and respects the organization of the court by which he was tried. It was composed of the circuit judge, who presided, Judge Inglis, an associate judge of the New-York Common Pleas, and Messrs. Benson and Purdy, city aldermen. The 2 R. S. 129, 2d ed. § 3, declares, that each of the circuit judges possesses the powers of a justice of the supreme court in the courts of oyer and terminer, and jail delivery. By 5, the circuit judges respectively are to appoint the times and places of holding their circuit courts and the courts of oyer and terminer within their circuits; and by

6, the respective circuit judges of the respective circuits comprehending the cities of New-York and Albany, have an unlimited discretion as to the place of holding their courts within these cities. By 12, p. 130, it is made the duty of the respective circuit judges to attend at the appointed places; and preside in the courts of oyer and terminer, and by $ 14, each justice of the su