
    GEORGE S. WOOD, Plaintiff in Error, v. THE PEOPLE, Defendants in Error.
    
      Bill of exceptions — how and by whom settled—Indictment — motion to quash—• Perjury—commotion for — sustained when offense is mffiaientty assigned in any one count—Punishment for the crime—refused of the judge to charge thejwry as to.
    
    Plaintiff in error was convicted of perjury at a court of sessions, held on August 27th, 1872, and sentenced. On August 26,1873, a hill of exceptions was settled by the county judge and justices of sessions of the county^where the conviction was had, none of whom took part in the trial, or were, at the time thereof, members of the court. Held, that no bill of exceptions had been settled as required by law. The same court which tries a criminal must settle the bill of exceptions, and such settlement must take place before the final adjournment of the court, at which the trial is had.
    After pleading not guilty to the indictment, the plaintiff in error moved to quash the indictment; the motion was denied and an exception taken. Held, that the motion was addressed to the discretion of the court, and was not a proper subject of exception.
    
      The indictment alleged that the court was held at the town of Kingsbury, and that the perjury was committed at the village of Sandy Hill. Reid, that the indictment was sufficient,as it was alleged in each count that the court was held> and the perjury committed, in the county of Washington; that the precise locality is not matter of description, and need not be proved as alleged; held, further, that the courts take judicial cognizance of the statutes of the State, whereby counties, towns, etc., are created, and thus know that the village of Sandy Hill is in the town of Kingsbury.
    In an indictment for perjury, the time stated therein when the oath was administered, is not material, so it be before the finding of the indictment and within the statute of limitations.
    Where the offense is sufficiently assigned in any one count in the indictment, the remainder may be rejected as surplusage, and the conviction sustained.
    The judge refused to instruct the jury as to the punishment of the prisoner, if convicted. Held, that this was correct; the jury had nothing to do with the punishment, nor had the degree thereof any -possible right to influence their verdict.
    A writ of error brings before the court only the record and exceptions taken, and it is not competent for it to weigh the evidence, or pass upon the correctness of the verdict of the jury.
    Writ of error to review the conviction of the plaintiff in error, for perjury, at a Court of Sessions, held in and for the county of Washington.
    Plaintiff in error was convicted upon an indictment for perjury, at a Court of Sessions, held in and for the county of Washington, on the 27th day of August, 1872, before Hon. Charles S. Lester, county judge of Saratoga county, and Eli Skinner and William Hatton, justices of the peace of Washington county, designated, according to law, as members of the Co.urt of Sessions. Upon such conviction, plaintiff in error was sentenced to imprisonment in the State prison for five years. Afterward, and on the 26th of August, 1873, exceptions were settled by Hon. A. D. Wait, county judge of Washington county, and John B. Little and John Horton, justices of sessions of said county, none of whom took part in the trial of said indictment, or were members of said court when the same was tried. Hor does it appear that said court, held in August, 1873, was a continuance or adjourned term of the court held in August, 1872.
    Upon the trial, exceptions were taken to the rulings of the court, which, so far as necessary, are stated in the opinion. ■ The writ of error was granted on the 20th day of January, 1874, and was accompanied with a stay of proceedings, the plaintiff in error being, as is understood, on bail since his conviction.
    
      J. S. Landon and C. F. Doyle, for the plaintiff in error.
    
      R. 0. Betts, district attorney, md H. Smith, for the defendants in error.
   By the Court,

Boabdmajx, J.:

The bill of exceptions presented to us is not such as. the law requires. By the 2d Revised Statutes, 736, section 21, it is provided, that exceptions may be taken upon the trial of an indictment, by the defendant, to the decisions of the court, as in civil cases; but, by sections 23 and 24, such bill of exceptions shall not delay the execution of the judgment, unless a stay is indorsed upon such bill of exceptions after the same is settled and filed. In this case, no exceptions were settled, as required by law, by the court which tried the plaintiff in error, nor until a year after the trial. Three persons, who took no part in the trial, and were not members of the court where the trial was had, assumed to sign and settle the bill of exceptions. Such practice is wholly unwarrantable. The same court which tries a criminal must settle the bill of exceptions, and such settlement must take place before the final adjournment of the court, at which the trial is had. The fact that provision is made for such settlement, when the judge who tried the case is dead or gone out of office, indicates quite clearly that the judges who preside at the trial must settle the bill of exceptions, and that no other judges or officers can do so. It is self-evident, that such a rule is the only safe and prudent one.

If this conclusion be correct, there is no bill of exceptions in this case before this court, and its contents cannot be. examined, as a basis of action upon this writ. All that the writ has brought up, is the judgment record. Such questions, only, as arise upon the face of the record, can be reviewed. Nearly all the objections, upon which the plaintiff in error relies, are such that, if real, they will appear upon the record, and may, therefore, be reviewed. After pleading not guilty to the indictment, the plaintiff in error moved to quash it, for various reasons assigned, and an exception was taken to the denial of the motion. This exception cannot Avail, because such motion is addressed to the discretion of the court, and is not a proper subject of exception. The case is still stronger against the plaintiff in error, after arraignment and plea of not guilty. But that is. not of importance, since the same objections are presented by a motion in arrest of judgment, at the close of the case.

Let us examine the various questions presented, and see whether the indictment is sufficient to sustain the conviction. Because the court is alleged to have been held in the town of Kingsbury, and the perjury to have been committed in the village of Sandy Hill, it is claimed that the conviction cannot be maintained. It is sufficient, that each count in the indictment charges that the court was held, and the perjury committed, in the county of Washington. That is all that was essential to jurisdiction in this case. The precise locality in the county is not matter of description, and need not be proved as laid. The charge is transitory.

But courts take judicial cognizance of the statutes of the State, whereby counties, towns, cities and villages are created, and thus know that the village of Sandy Hill is in the town of Kingsbury.

Another objection is, that the oath was administered March ysecond and the perjury committed March third, and that the indictment is therein repugnant. The time stated in an indictment when the oath was administered, is not material, so it be before the finding of the indictment, and within the statute of limitations.. There are certain exceptions, where time is of the essence of the offense, but this is not one of them. The time so stated is immaterial and may be rejected.

Another objection is, that perjury is imperfectly assigned. A careful reading of this indictment, satisfies me that the assignment of perjury is full and complete in some of the counts. In the first count, it is alleged that the evidence, therein stated to have been given, was material to the issue being tried; it gives the testimony of plaintiff in error on former trial, and then, specifically, and in detail, charges that it was false. If, however/in some instances, such assignments should be found defective and insufficient, it would not answer the plaintiff in error’s purpose, so long as any one charge in the count is perfect upon the record. The remainder may be rejected as surplusage.

Whatever may be thought of the assignment of perjury in some of the counts, it is beyond doubt that the first count is good, under the above authorities; conceding that, a motion in arrest could not prevail, nor can a conviction be reversed. After a general verdict of guilty, as in this case, the conviction will be sustained, if there be one good count, though many others are defective.

It appears that, in 1869, Wood brought an action of slander against one Conant, alleging that Conant had charged him with killing a diseased cow, and selling diseased and unwholesome meat from said cow. Conant answered by general denial, and also justification. Upon the trial, Wood testified that the cow was never sick, to his knowledge, nor lame, nor had she any swelling, to his knowledge; that he had never told one George Chapin she had a swelling; that no part of the meat was cut off and thrown away; that the meat was not diseased; and that he ate a portion of said meat, etc., etc. All of this, and other evidence not here set forth, was, and is alleged to be, false, and for such alleged false swearing, this indictment was obtained. Upon a trial before a jury, Wood has been convicted. Notwithstanding it is believed the proceedings and evidence upon the trial are not properly before us for review, we will briefly allude to the objection raised in that respect. It is difficult to understand why all the testimony alleged to be false, was not material upon the issue above stated. Certainly, it all bore upon the possession, by Wood, of a diseased cow, his slaughtering her, his knowledge of her condition and the quality of the meat, and was, therefore, competent evidence to repel the justification. If Wood’s evidence was believed, in the action of slander, a justification of the words spoken, could not be sustained. Whatever evidence may have been given by Conant, tending to establish the truth of the words charged, it would be overcome by Wood’s testimony, if credited. It must be apparent from the nature of the issue, upon the face of the record, that the evidence was material. "

Another objection is the refusal of the court to instruct the jury, as to the punishment of Wood, if convicted. The refusal was correct. The jury had nothing to do with the punishment, nor had the degree of punishment any possible right to influence their verdict. Such information would have been simply mischievous in its effect upon jurors, by creating sympathy or prejudice, in no respect aiding them in rendering a true verdict upon the evidence.

In the view taken of Wood’s evidence, no error was committed in allowing Woodcock to testify to the killing of the cow, and to finding a sore upon her which he cut off and threw away. It was essential to Oonant to prove the cow, in Wood’s possession, diseased, slaughtered in that condition, and diseased portions of the flesh thrown away. ' All these were circumstances, essential to be proved in justification. It may well be that other and more important facts must be established, but these were links in the chain, and were competent.

The decision of the court, in the admission of Brigham’s evidence, as to the quality of the beef, was correct. The reason he gave for such decision is not excepted to, and is' not covered by an exception to the admission of the testimony. The remark of the judge was not, apparently, addressed to the jury, and was not the object of an exception.

The writ of error brings before this court only the record and exceptions taken on the trial. It is not competent for the court to weigh the evidence, or pass upon the correctness of the verdict of the jury; questions of fact cannot be reviewed by writ of error. It is not analogous to appeals in civil cases. The evidence is only of use, in determining- the value of the exceptions taken.

For the reasons assigned, we think no fatal error was committed upon the trial of this indictment, and that the conviction and judgment should, in all things, be affirmed.

The proceedings and judgment are remitted to the Court of Sessions of Washington county, for such further action as may be proper; and the plaintiff in error will appear at the next Court of Sessions, to be held in and for Washington county, and abide the order and judgment of said court.

Present—Miller, P. J., Bocees and Boardman, JJ.

Conviction and judgment affirmed. 
      
       Birge v. The People, 5 Park. R., 9.
     
      
       Laws of 1872, chap. 56.
     
      
       People v. Eckford, 7 Cow., 535; 1 Colby, 266.
     
      
       People v. Walters, 5 Park., 661; 1 Whar. Crim. Law, §§ 519, 520, 524.
     
      
      
         Rex v. Woodward, 1 Moody C. C., 323; 1 Whar. Am. Crim. Law, §§ 601, 602; 2 Colby Crim. L., 131.
     
      
       Vanderwerker v. People, 5 Wend., 530; Bronson v. Gleason, 7 Barb., 475; People v. Breese, 7 Cow., 429.
     
      
       People v. Stocking, 50 Barb, 573; 2 Colby C. L., 129; 1 Whar. C. L., §§ 261, etc.
     
      
       Rex v. Hill, Rus. & Ry., 199; 2 Wharton Cr. Law, § 2260; People v. Haynes, 11 Wend., 564; reversed in Court of Errors, but not on this point.
     
      
       1 Salk., 384; Reg. v. Rhodes, 2 Ld. Ray., 886; Douglas, 703.
     
      
      
         Guenther v. People, 24 N. Y., 100.
     
      
       Wilson v. People, 4 Park., 633.
     
      
       People v. Thompson, 41 N. Y., 1.
     