
    The People of the State of New York, Resp’ts, v. Charles Johnson, App’lt.1
    
      (Court of Appeals,
    
    
      Filed June 19, 1888.)
    
    1. Criminal law—Murder in the first degree—Evidence that crime WAS COMMITTED WHILE DEFENDANT ENGAGED IN COMMISSION OF 'A felony—Attempt to escape from prison.
    The defendant while confined in the Seneca county jail upon two indictments (one for the crime of burglary in the third degree and the other for grand larceny in the first degree), attempted to escape therefrom, and in such attempt killed one Walters. Held, that it was not incumbent upon the people, in order to make out a. prima facie case, that the defendant was lawfully restrained of his liberty upon a charge of felony, to put in evidence the proceedings taken upon the examination of the defendant.
    2. Same—Sufficiency of evidence.
    
      Held, that the evidence tended to establish the fact that the death of Walters occurred while defendant was attempting to commit a felony, and legally tended to establish his guilt of the crime of murder in the first degree.
    3. Same — Commitment sufficient which recites the charge upon WHICH THE PRISONER IS HELD—CODE CrIM. PRO., § 214.
    The commitments made by the person who was an acting justice of the peace, stated in one that Charles Johnson was held to answer upon “a charge of burglary in the third degree,” and in the other commitment that he was held upon “a charge of grand larceny in the first degree.” Held, that the statements made were a sufficient compliance with the requirements of the statute.
    4. Same—What fact does not show commitment defective.
    The fact that a commitment states the name of a crime does not demonstrate that it does not also define the nature of the crime within the meaning of the provision requiring such crime to be briefly stated.
    5. Same—Not necessary that commitment contain a statement of circumstances attending commission of the crime.
    There is nothing in the office which a commitment is designated to perform requiring a detailed statement of the circumstances attending the commission of the crime.
    6. Same—Failure to swear officer in charge of jury while viewing premises an irregularity—Code Grim. Pro., § 412.
    The omission of the trial court to cause the officers in charge of the jury, while taking a view of the scene of the crime, to take the oath prescribed by Code Criminal Procedure, section 412, was an irregularity merely which could be waived by the defendant. The consent of the defendant’s counsel that such view should be taken, and his omission to object or call the attention of the court to- the want of such oath was a waiver of said irregularity
    7. Same—Jurors—Drawing in Seneca county—Laws 1822, chap. 137, Not repealed by Code Grim. Pro., § 358.
    Laws 1822, chapter 137, section 2, which enacted that the clerk of the county of Seneca should keep the names of the jurors, in the two jury districts into which said county was divided, in such districts separated, and that the jurors should be drawn for each court from the jury district in which the court is to be held, was not repealed by Code Criminal Procedure, section 358.
    
      8. Effect of precepts of inferior courts—Presumptions as to.
    Aside from the proof of jurisdictional facts, the orders and precepts of courts of inferior and limited jurisdiction have the same force and effect, and are entitled to the same presumptions as apply to those of courts of more extensive authority.
    Appeal from a judgment of the supreme court, general term, fifth department, affirming a judgment entered upon a verdict rendered by a jury at the Seneca county oyer and terminer convicting the defendant of the crime of murder in the first degree.
    
      Gorydon Rood, for app’lt; Frederick L. Allen, for resp’ts.
    
      
       Affirming, 13 N. Y. State Rep., 48.
    
   Ruger, Ch. J.—

The defendant was jointly indicted with Edward Caldwell and Marcus Fish for the murder of John Walters on the 9th day of January, 1887. Johnson elected to have a separate trial which was awarded to him and took place on the 4th and 5th days of April, 1887, and resulted in his conviction of the crime of murder in the first degree. The conviction was affirmed by the general term of the supreme court and the defendant appeals from the judgment of affirmance to this court.

We have carefully examined the evidence appearing in the record and are of the opinion that it fully supports the verdict of the jury. Indeed no serious question is made but that Walters received a blow upon the head, inflicted by the defendant with an iron instrument, called a poker or stove shaker, which fractured his skull and occasioned his death. The only evidence given on behalf of the defendant was the testimony of one witness to the effect that Cronin, one of the people’s witnesses, had made contradictory statements in respect to the affray about which he had testified. The attempted contradiction was quite inconclusive and left the case made by the people’s evidence, substantially unaffected by opposing evidence. It is claimed, however, that certain rulings made by the court in the course of the trial and thereafter, were erroneous and for that reason the judgment should be reversed.

The evidence disclosed that the defendant at the time of the homicide, was confined in the Seneca county jail upon two commitments, one for the crime of burglary in the third degree, and the other for grand larceny in the first degree, that he, with certain other persons confined in the jail, conspired to break out therefrom by digging a hole through the walls, but being unable for want of time to accomplish their purpose in this manner, they concluded to assault their jailors when opportunity offered, and thus escape. Their plan as expressed by Johnson was to “ slug the sheriff” and thus overcome expected obstructions to their escape.

About nine o’clock p.m. of the 9th day of January, the deceased accompanied by the sheriff and deputy jailor Cronin, proceeded in their customary manner to lock up the prisoners for the night. There were some fifteen or twenty prisoners in the jail corridor, among whom was the defendant. Cronin unlocked the inside door of the jail, and swung it back into the corridor, where it was seized and held open by Fish, one of the conspirators, while Johnson and Caldwell assaulted the approaching keepers. Walters immediately stepped on to the stairs leading down into the corridor, and, as he was descending them to the floor of the jail, was struck on the head with an iron instrument by Johnson, which felled him to the floor. Caldwell also struck him with a wooden club or stick. Johnson and Caldwell then passed up the stairway and through the door into a narrow entry-way, where they were met by the sheriff, who, after a severe and prolonged struggle, succeded in driving them, at the point of a pistol, back into their cells, and it was for the crime thus effected that Johnson was indicted and convicted.

No questions are raised involving the merits in the case, and but few argued, that we deem it necessary to consider, and those are quite technical in character.

First. The defendant challenged the panel of jurors upon the ground that they were not drawn from the body of the county, as provided by section 358 of the Code of Criminal Procedure. That section requires a trial jury to be formed “ as prescribed by the Code of Civil Procedure.” The general provision of the Code of Civil Procedure requires juries to serve in courts of record m the several counties of the state, except Kings and New York, to be drawn from the lists of persons prepared for that purpose by the county clerk from other lists of jurors returned to that officer by the various town officers in the several counties of the state charged with the duty of making such lists. Sections 1027 to 1062 Code of Civil Procedure. It is, however, further provided by subdivision 7, section 3347, that the above referred to provisions do not affect “ any special provisions of law remaining unrepealed after May, 1877, whereby trial jurors are directed to be procured for a particular court of record from a particular locality, or whereby a county is divided into two or more jury districts.”

The county of Seneca was divided into two jury districts by section 3 of chapter 137, Laws of 1822, and it was thereby enacted that the clerk of the county should keep the names of the jurors in such districts separate, and the jurors should be drawn for each court from the jury district in which the court is to be held.

We cannot find that this law has been repealed, and are informed that from the time of its enactment it has been, the uniform practice in the county of Seneca to make up jury lists in the manner pursued in this case. The challenge to the jury was therefore properly overruled.

Second. Upon the trial the defendant objected to the admission in evidence of the commitments upon which he was confined in the jail.

The point of this objection arises out of the fact that some of the counts of the indictment charged the homicide to have been committed while the defendant was engaged in the commission of, or an attempt to commit a felony, to wit, to escape from jail where he was confined upon a charge of felony. This charge, if sustained by proof, would render the killing of a human being under such circumstances the crime of murder in the first degree without regard to the degree of deliberation or premeditation exercised in its commission.

Section 85 of the Penal Code provides that “a prisoner who, being confined in a prison, or being in lawful custody, Tby force or fraud, escapes from such prison or custody is .guilty of felony if such custody or confinement is upon a charge, arrest, commitment or conviction for a felony,” and section 686 enacts that a person who unsuccessfully attempts to commit a crime is indictable and punishable by imprisonment for not more than half the longest term prescribed upon conviction for the commission of the offense attempted. A felony is defined as a crime which is or may be punishable by either death or imprisonment in a state prison (section 5, Penal Code).

We presume that the defendant, with the view of raising the question that he was not lawfully confined in jail, objected to the admission of the commitments in evidence ■upon the ground that they “did not comply with the Code of Criminal Procedure, and the justice had no right to issue them.”

It had then been proved that the justice making the commitments was an acting justice of the peace of the town of Seneca Falls, in the county of Seneca, and therefore the objection could not successfully; be raised that he had not authority to issue such commitments. The principal point urged to the form of the commitments is, that the statement that Charles Johnson was held to answer upon a “ charge of burglary in the third degree.” and in the other •commitment that he was held upon “a charge of grand larceny in the first degree,” were not a compliance with section 214 of the Code of Criminal Procedure, requiring the nature of the crime to be briefly stated therein.

We think the statements made were a sufficient compliance with the requirements of the statute. There is nothing in the office which a commitment is designed to perform, requiring a detailed statement of the circumstances •attending the commission of the crime. It is intended merely as a protection to the officer executing it, and as showing the authority upon which he restrains the accused person of his liberty. A reference to the statutory definitions of crimes, shows with sufficient clearness and precision, for the purposes in view, the nature of the crime charged in the commitment. The fact that it states the -name of a crime does not demonstrate that it does not also define the nature of the crime, and especially within the meaning of a provision requiring such crime to be briefly stated. In every other respect the commitment seems to be in exact conformity with the requirements of the statute.

We think it was not incumbent upon the people, in order to make out a prima facie case that the defendant was lawfully restrained of his liberty upon a charge of felony, to-put in evidence the proceedings taken upon the examination of the defendant. It was shown that he was arrested upon a valid warrant, issued by competent authority and was. examined before a magistrate authorized to perform that duty, upon the charge therein contained and held to answer the same, and the commitments were then made and delivered to the sheriff.

The evidence tended to establish all of the jurisdictional facts necessary to give the magistrate authority to make the commitments. There was no affirmative evidence given that the magistrate had omitted any act, which he was required by law to perform in the course of the examination, and we think so far as any such requirement was discretionary merely that he is entitled to the presumption that he performed his duty. The jurisdiction of the magistrate over the subject matter of the examination and the person of the defendant having been established, he had authority to make the commitments in question, and the recitals therein contained are presumptive evidence of the facts stated therein. Scott v. Ely, 4 Wend., 555. Aside from the proof of jurisdictional facts, the orders and precepts of courts of inferior and limited jurisdiction have the same force and effect and are entitled to the same presumptions as apply to those of courts of more extensive authority. Wright v. Nostrand, 94 N. Y., 31. The evidence tended to establish the fact that the death of Walters occurred while Johnson was attempting to commit a felony, and, if it was caused by the act of the defendant, legally tended to establish his guilt of the crime of murder in the first degree.

But a single exception was taken to the charge of the court, and that is so manifestly unfounded that it is unnecessary to notice it more particularly. Subsequent to the trial, a motion upon affidavits was made by the defendant to set aside the verdict of the jury, upon the allegation of irregularities in the conduct of the jury occurring during the course of the trial. The alleged irregularities consisted:

First. In allowing the jury to view the scene of the crime without first administering the oath to the officers in attendance upon them, prescribed by section 412 of the Code of Criminal Procedure.

Second. That members of the jury while engaged in making such view, received information from the officers attending them as to the location of the cells occupied by the several prisoners attempting to effect an escape, and the location of the body of the deceased on the floor of the jail after his death.

It may be said that these facts were known to the prisoner’s counsel at the time they transpired, and were neither brought to the attention of the court or objected to by them.

The prisoner’s counsel'assented to the proposition that the jury should view the scene of the crime, and the court had undoubted authority to permit them to do so. (Code Grim. Pro. § 411.) The location of the prisoners’ cells, as well as the position of Walter’s body after death, was the subject of much oral testimony on the trial, from eye witnesses, as well as illustrations by a diagram of the premises, and they were, neither of them, the subject of controversy or dispute on the trial. It is impossible to see how the information, alleged to have been given to the jury, was of the slightest materiality upon any issue of the trial. The answering affidavits on the part of the people, controverted the allegations that any communication took place between the jury and the officers on the subjects referred to; and the trial court might well have found that the defendant’s allegations were not true.

We are, however, of the opinion that the motion in question was addressed to the sound discretion of the trial court, and that we have no right to review the exercise of such discretion, unless it appears that it has been abused to the prejudice of the defendant,

The causes for which the trial court may grant a new trial to a defendant in a criminal case are specifically pointed out in section 465 of the Code of Criminal Procedure, and, among others, embrace the following:

First. ‘ ‘ When the trial has been had in his absence when the indictment be for a felony.”

Second. When the jury has received any evidence out of court other than that resulting from a view as provided in section 411. .

Third. When they “have been guilty of any misconduct by which a fair and due consideration of the case has been prevented.”

In such cases the trial court is authorized to grant a new trial, provided they can see that the “ substantial rights” of the defendant have been prejudiced, and not otherwise. There is no evidence that any part of the trial was had in the absence of the defendant or, that he has been deprived of any right which the statute gives in order to secure to him a fair and impartial trial. The omission of the trial court to cause the officers in charge of the jury while taking a view, to take the oath prescribed by section 412, was an irregularity merely which could be waived by the defendant, and was, we think, waived by the consent of his counsel, that such view should be taken, and by his omission to object or call the attention of the court to the want of such oath. However that may be, it was, upon the facts in this case, a question for the court to determine whether any substantial right of the defendant had been prejudiced by the conduct complained of, and we do not think there is any sufficient reason for us to interfere in the conclusions reached by it in respect thereto. People v. Draper, 1 N. Y. Crim. Repts., 139.

The judgment of the general term should, therefore, be affirmed.

All concur.  