
    SUPREME COURT.
    The People agt. Mortimer Shay.
    A conviction and sentence, under the Revised Statutes, of a person for petit larceny, does not render him an incompetent witness in any case. Petit larceny is not a felony by statute, although it may be at common law, as to all questions controlled by the common law.
    Although particularity is required m an indictment for murder, yet, where it is apparent that the allegations are substantially sufficient, a clerical mistake will be disregarded.
    
      New- York, General Term, March, 1860.
    
      Present, Sutherland,. Allen and Bonney, Justices.
    
    Writ oe error for a new trial on conviction of murder.
    Henry L. Clinton, for motion.
    
    Nelson J. Watebbury, district-attorney, opposed.
    
   By the court—Sutherland, Justice.

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 New-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 Devised 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 be 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 previous 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, shaE 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. 4,

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 agt. Alder (3 Parker, 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-Devised 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 agt. Alder was such a question, unaffected by the statutory definition.

On the cross-examination, by the district-attorney, of Tkadeus 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 been 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 Mew-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 blow 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.

Mow, 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 case 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: 1st. That the prisoner then and there had and held in his right hand a certain knife. 2d. That he did then and there heat, strike, stab, cut and wound the deceased. 3d. 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.  