
    PEOPLE a. SHAY.
    
      Supreme Court, First District;
    
      Oyer and Terminer, February, 1860.
    Again, General Term, March, 1860:
    Indictment.—Disqualification of Witness by Sentence for Crime.
    In an indictment for murder, the omission of the word “ with” in stating the instrument with which the fatal blow was given, may be regarded as a clerical mistake, if it is substantially alleged that the blow was given with the instrument.
    Being sentenced on a conviction for petit larceny, does not disqualify as a witness.
    Motion in arrest of judgment; and writ of error.
    I. February, 1860.—The prisoner had been tried at the Oyer and Terminer on an indictment for the murder of one Leary, and was convicted. His counsel now moved an arrest of judgment <?n account of a defect in the indictment.
    
      Henry L. Clinton, for the motion.
    
      Nelson J. Waterbury, district-attorney, opposed.
   Ingraham, J.

—In this case the prisoner has been tried, and convicted of murder. Ho objection was taken on the trial, or previous thereto, to the form of the indictment. A motion is now made on behalf of the prisoner in arrest of judgment for the omission of the word “ with” in the indictment, before the description of the weapon used by the prisoner. The mistake is evidently a clerical one; but still, if material to charging the offence, would be available. The clause in the indictment reads as follows : “ That the said Mortimer Shay-a certain knife which he, the said Mortimer Shay, in his right hand then and there had and held, him, the said John Leary, in and upon the forehead, then and there wilfully and feloniously, and of his malice aforethought, did beat, strike, stab, cut, and wound, giving unto the said John Leary, then and there, with the knife aforesaid, in and upon the forehead of the said John Leary one mortal wound,” &c. I cannot conclude that the omission of the word “ with” before the words “ a certain knife” is such a defect in substance as to warrant granting this motion. The indictment would read so as to charge the offence, if those words were included in a parenthesis;—“ That the said Mortimer Shay (he the said Shay holding a knife in his hand) did stab, beat, strike, and wound said Leary, and giving unto the said Leary, then and there with the knife aforesaid, a mortal wound,” &c. The offence is fully stated without the word omitted; and although it is necessary to name the weapon with which the death' was effected, the indictment sufficiently shows it, notwithstanding the omission of the word complained of. The cases cited by the prisoner’s counsel are none of them applicable to this case. They relate to cases where the defect was in charging the offence; here it is merely in relation to the weapon with which the offence was committed, and in that respect the objection is remedied by the subsequent part of the count in the indictment, which charges expressly that the wound was given with the knife, and that of such wound the prisoner died. It seems to me that the offence is fully charged in the indictment, notwithstanding the omission of this word, and if so, it becomes a mere error in matter of form, which is cured by the statute.

Motion denied.

II. March, 1860.—Writ of Error. The prisoner then obtained an allowance of a writ of error on which the cause was brought before the Supreme Court, at general term.

By the Court.—Sutherland, J.

—At the last Oyer and Terminer held in this city, the prisoner, Mortimer Shay, was tried on an indictment for the alleged murder of one John Leary, and was convicted.

The case comes before this court by writ of error.

On the trial, among other witnesses, one Stephen Leary was called, and sworn as a witness on the part of the people, and the testimony which he gave was material to the issue.

It appearing that Stephen Leary had previously been convicted of petit larceny, at a court of general sessions of the peace, held in and for the city and county of Hew York, by a copy of the record of his conviction properly certified and introduced in evidence by the counsel for the prisoner, the counsel for the prisoner thereupon moved that the evidence of the said Stephen Leary be stricken out.

The court denied such motion, and refused to strike out such evidence; and the counsel for the prisoner then and there duly excepted to such refusal of the judge to strike out Stephen Leary’s testimony.

The first question presented by the writ of error is, Did the judge err in refusing to strike out this testimony ; or, in other words, was Stephen Leary a competent witness, notwithstanding his previous conviction of petit larceny ?

The three chapters constituting the fourth part of the Revised Statutes, were passed as one act. That act is entitled “ An act concerning crimes and punishments,” &c.

By section one of title six of chapter one of that act (2 Rev. Stat., 690), petit larceny is defined to be the “ stealing, taking, or carrying away the personal property of another, of the value of twenty-five dollars or underand that section declares that the punishment of petit larceny shall be “ imprisonment in a county jail not exceeding six months, or by fine not exceeding one hundred dollars, or by both such fine and imprisonment.”

Section twenty-three of title seven of the same chapter (2 Rev. Stat., 701), declares that “no person, sentenced upon a conviction for felony, shall be competent to testify in any cause, matter, or proceeding, civil or criminal, unless pardoned,” &c.; but that “ no sentence, upon a conviction for any offence other than a felony, shall disqualify or render any person incompetent to be sworn or to testify in any cause, matter, or proceeding, civil or criminal.”

Section thirty of the same title seven (2 Rev. Stat., 702), declares that “ the term felony, when used in this act, or in any other statute, shall be construed to mean an offence for which the offender, on conviction, shall he liable by law to be punished by death, or by imprisonment in a state-prison.”

It would appear to follow so clearly and conclusively, from these statutory provisions and definitions, that Stephen Leary was a competent witness in this case, notwithstanding his pre-' vious conviction of petit larceny, and that the judge did right in refusing to strike out his evidence, that it is difficult to see how even a question could be raised on that point. One provision of the act is, that no conviction, for any offence other than a felony, shall disqualify or render any person incompetent to be sworn, or to testify; and another provision of the same act defines the word “felony,” when used in the act, to be an offence punishable by death, or imprisonment in a state-prison ; and, by a third provision of the same act, the offence of petit larceny is defined ; and it is declared to be punishable not by death or imprisonment in a state-prison, but by fine or imprisonment in a county jail, or by both such fine and imprisonment.

It follows so plainly, from these statutory provisions, that Stephen Leary was a competent witness, notwithstanding his previous conviction of petit larceny, that one would hardly look for, or expect to find, an authority outside of the statute on that point. •

The case of The People a. Alder (3 Park., 249), does not at all interfere with the plain construction of the statute. That case decides only that the definition of the word felony, in the Revised Statutes, applies only where the word is used in a statute, leaving petit larceny still a felony as at common law “ in respect to all questions controlled solely by the common law.” The question in The People a. Alder was such a question, unaffected by the statutory definition.

On the cross-examination, by the district-attorney, of Thaddeus Spencer, a witness called and sworn for the prisoner, the district-attorney put this question to the witness: “ Do you know that the prisoner had a cutting match with any one previous to the killing of Leary ?”

The witness was allowed to answer this question, after objection by the counsel for the prisoner. The answer was : “ I do not.”

As the answer could not possibly prejudice the prisoner, it is unnecessary to inquire whether the question, in reference to the testimony which had heen given by the witness on his direct examination, was or was not proper.

The remaining question in this case is raised on the face of the indictment. That question is, whether the indictment, in charging the offence, sets forth with sufficient particularity and certainty, the manner of the death, and the means by which it was effected. The counsel for the prisoner insists that the indictment is fatally defective in this respect, and does not charge the crime of murder within the rules of criminal pleading, and therefore moves that the judgment be arrested.

The indictment, after alleging in the usual manner that the prisoner, on a certain day, at the first ward, in the city of Hew York, with force, &c., on and upon John Leary, wilfully, feloniously, &c., did make an assault, and then proceeds as follows:

And that the said Mortimer Shay, - a certain knife,

which he, the said Mortimer Shay, in his right hand then and there had and held, him, the said John Leary, in and upon the forehead, then and there wilfully and feloniously, and of his malice aforethought, did' beat, strike, stab, cut, and wound, giving unto the said John Leary, then and there, with the knife aforesaid, in and upon the forehead of him, the said John Leary, one mortal wound, of the breadth of one inch, and of the depth of three inches, of which mortal wound he, the said John Leary,” &c.

The counsel for the prisoner insists that the evidently clerical mistake in the omission of the word with, before the description of the weapon, renders the indictment fatally defective; that although the indictment alleges that the fatal wound was given with the knife, yet, that in consequence of the omission of the word with before the word knife, in the preceding portion of the indictment, it is not alleged that the fatal How or stab, &c., which caused the mortal wound, was given with the knife; that it does not appear, nor is it alleged, that the knife caused the mortal wound.

How, without examining the authorities cited by the counsel for the prisoner to show the particularity required, in an indictment for murder, in setting forth the manner of the death and the means by which it was effected, and conceding, for the purposes of this question, that the indictment in this ease should have substantially alleged that the mortal blow or stab was struck or made with the knife, yet I think this indictment does, in fact, so substantially allege. The indictment distinctly and certainly alleges three things: 1. That the prisoner then and there had and held in his right hand a certain knife. 2. That he did then and there beat, strike, stab, cut, and wound the deceased. 3. That he then and there gave unto the deceased, on and upon his forehead, with the knife aforesaid, one mortal wound, &c.

Now, is not this substantially alleging that the blow, stab, &c., were given with the knife ?

It is certainly plainly alleged that the prisoner struck the deceased, having in his right hand a knife, and that he gave the mortal wound with the knife. Is not this substantially alleging that the prisoner struck the deceased with the knife, and that the knife caused the mortal wound ? I think it is, and that the death, and the means, and manner, in and by which it was effected by the prisoner, is sufficiently and certainly charged in the indictment.

In my opinion, the judgment of the Oyer and Terminer should be affirmed. 
      
       Present, Sctherland, Allen, and Bonnet, JJ.
     