CHAPTER II. Of Felonies. Crimes of the degree of felony cognizable by the laws of this state are primarily divided into the following classes: I. Crimes punishable with death. II. Offences against the person, punishable by imprisonment in a state prison. III. Offences against property, punishable by imprisonment in a state prison. IV. Offences affecting the administration of justice, punishable by imprisonment in a state prison. V. Offences against the public peace and public morals, and other miscellaneous offences punishable by imprisonment in a state prison. These general heads will be again subdivided, as occasion may suggest. I. CRIMES PUNISHABLE WITH DEATH. The first observation we shall make under this head will be to notice the spirit of humanity which breathes through our criminal code, as contrasted with that of England. At the time Blackstone wrote his commentaries, there were no less than one hundred and sixty capital offences known to the laws of that country. (a) And although the number has been much diminished since that time, there are no less than sixteen offences still punishable with death in England. (b) In this state there are but three offences punishable with death, viz. Treason, Murder, and Arson in the first degree, as those crimes are severally defined in the revised statutes.(c) 1. TREASON. This offence stands highest on the list of crimes, because it strikes directly at the welfare of society. At common law and by statute in England, a great variety of acts, and even of imaginations, are declared to be treason, and the punishment is of the most horrible description. In this state, however, the statute specifies but three acts as amounting to treason: 1st, Levying war against the people of this state, within the (a) 4 Black. Com. 18. b) Maugham's Outlines of Cr. Law, (c) 2 R. S. 656, 7. state; or 2nd, A combination of two or more persons by force to usurp the government of this state, or to overturn the same, evidenced by a forcible attempt made within this state, to accomplish such purpose; or 3rd, Adhering to the enemies of this state while separately engaged in war with a foreign enemy in the cases prescribed in the constitution of the United States, and giving to such enemies aid and comfort in this state and elsewhere. (d) At common law, corruption of blood and forfeiture of the estate of the offender followed, as a necessary consequence, upon every conviction for treason. But by our revised statutes it is declared that whenever any person shall be outlawed upon a conviction for treason, the judgment thereupon shall produce a forfeiture to the people of this state, during the lifetime of such person, and no longer, of all his property.(e) And the third section of the fourth article of the constitution of the United States contains a similar provision. With regard to the phrase "levying war," in the first subdivision of the section of our statute above referred to, it may be observed that war can only be levied by employing actual force. Troops must be openly raised and embodied. To levy war, is to raise, create, or carry on war. And the term "levying war," is used in the constitution of the United States and in our revised statutes, in the same sense in which it was understood in England and this country to have been used in the statute 25 Edw. III. from which it was borrowed.(f) There must be an assemblage of persons for the purpose of effecting by force a treasonable purpose. Enlistment of men to serve against the government is not sufficient.(g) But the meeting of particular bodies of men, and their marching to a place of general rendezvous, is such an assemblage as constitutes levying war.(h) With respect to the third subdivision of the section of our statute defining treason, its meaning obviously is, taking part with our enemies in time of war and rendering them actual assistance against our own government; either by joining their ranks and fighting for them; or by furnishing them with information, or materials, provisions, or ammunition.(¿) In this state it has been decided, 1. That treason against the United States is not cognizable in the state courts; 2. That the offence of adhering and giving aid and comfort to the enemies of the United States, is not treason against the state of New-York; and 3. That treason may (d) 2 R. S. 656, § 2. (e) Id. ib. § 3. (f) 4 Cranch's Rep. 471. (g) Walk. Am. Law, 492. 4 Cranch's Rep. 75. (h) Davis' Just. 411. (i) See Walk. Intro. 492. be committed against the state by opposing the laws, or forcibly attempting to overturn or usurp the government.(k) Indictment.] Any number of overt acts may be laid in the indictment ;(7) and proof of any one of them will be sufficient to maintain the count if it be a sufficient overt act of the species of treason charged in the indictment. (m) Where words or writings are laid as overt acts, it is sufficient to set forth the substance of them; so that the charge be reduced to a reasonable certainty.(n) No evidence can be given of any overt act that is not expressly laid in the indictment; and no conviction can be had upon any indictment for treason unless one or more overt acts be expressly alleged therein.(0) In the count for levying war it is not necessary to set out the particular acts of the defendant. It will be sufficient to allege generally that the defendant assembled with a multitude armed and arrayed in a warlike manner, and levied war. (p) But in the count for adhering to the enemies of the state, the special acts must be set forth as overt acts; but if so done that the charge is reduced to a reasonable certainty, it is sufficient, as in other cases of treason.(q) Evidence.] In trials for treason, no evidence can be given of any overt act that is not expressly laid in the indictment.(r.) For the overt acts, and not the principal treason, constitute the charge against which the prisoner has to direct his defence; and whether the act proved be sufficient to constitute an overt act of the principal treason laid in the indictment, is matter of law for the court to determine.(s) However, an overt act not laid may be given in evidence to prove, if it amount to direct proof of, an overt act which is laid. (t) The time need not be proved as laid, provided it be shown to be within three years from the finding of the indictment.(u) As to place, an overt act must be proved to have been committed in the proper county.(v) When a conspiracy is laid as an overt act, the acts of any of the conspirators, done in furtherance of the common design, may be given in evidence against all. (w) In order to which, 1. Prove the conspiracy; 2. Connect the defendant with it; 3. Connect the other party whose (k) 11 John. 549. (1) Kel. 8. (m) 1 Hale, 122. Fost. 194. (r) 2 R. S. 735, § 16. (8) Matt. Dig. 407. (t) 4 St. Tr. 661, 697, 708, 722. (n) 6 St. Tr. 58, 73. 4 id. 411. 2 Fost. 9, 22. 8 Mod. 82, 89. (u) 9 St. Tr. 587. Fost. 7, 8. (v) 4 St. Tr. 410, 455. 1 Salk. 288. (w) 1 East P. C. 70. 6 St. Tr. 527. acts are to be given in evidence, with the conspiracy; 4. Prove such acts, and that they were done in furtherance of the common design.(x) In order to maintain the count for levying war, an actual levying of war must be proved. (y) And in order to maintain the count for adhering to the enemies of the state, in addition to the proof of overt acts, as above mentioned, it must be shown that the parties to whom the defendant adhered were the enemies of the state. Public notoriety may be sufficient evidence of the fact, but where war is only recently proclaimed, the gazette containing the proclamation may be given in evidence.(z) No person can be convicted upon an indictment for treason but by the testimony of two lawful witnesses to the same overt act, or one witness to one overt act and another witness to a different overt act of the same treason. But if two or more distinct treasons of divers kinds be alleged in an indictment, one witness to prove one treason, and another witness to prove a different treason, are not to be deemed two witnesses to the same treason, within the meaning of this provision.(a) HOMICIDE. The killing of a human being, without the authority of law, by poison, shooting, stabbing, or any other means, or in any other manner, is called by the general name of homicide, and is declared by the revised statutes to be either murder, manslaughter, or excusable or justifiable homicide, according to the facts and circumstances of each case. (b) It is a general rule that all homicide is malicious, and of course amounts to murder, unless where justified by the command or permission of the law; excused on the account of accident or self preservation; or alleviated into manslaughter, by either being the involuntary consequence of some act, not stricly lawful, or, (if voluntary,) occasioned by some sudden and sufficiently violent provocation. And all these circumstances of justification, excuse, or alleviation, it is incumbent upon the prisoner to make out, to the satisfaction of the court and jury; the latter of whom are to decide whether the circumstances alleged are proved to have actually existed; the former, how far they extend to take away or mitigate guilt. For all homicide is presumed to be malicious, until the contrary appears upon evidence. (c) (1) Matt. Dig. Cr. L. 408. (y) 1 Hale, 131, 148. 1 Hawk. ch. 17, 27. (z) Fost. 219. 1 Hale, 164. (a) 2 R. S. 735, § 15. 2. MURDER. The killing of a human being, without the authority of law, unless it be manslaughter, or excusable or justifiable homicide, as thereafter provided, is declared by the revised statutes to be murder in the following cases: 1. When perpetrated from a premeditated design to effect the death of the person killed, or of any human being; 2. When perpetrated by any act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual; 3. When perpetrated without any design to effect death, by a person engaged in the commission of any felony. And by the sixth section, the wounding of another in a duel out of this state, of which wound he shall die within this state, is declared murder.(d) It has been decided that under these provisions of the revised statutes, the indictment for murder may be in the common law form, charging the offence to have been committed feloniously, wilfully, and of malice aforethought, instead of charging it to have been perpetrated from a premeditated design to effect the death of the person killed ; (e) but the accused cannot be convicted on such an indictment of a felonious homicide, with malice aforethought, unless the evidence be such as to bring the case within the statutory definition of murder. (f) The principal object of these provisions of the revised statutes was, to restore the common law of murder, as it anciently existed, by discriminating between a felonious killing with malice aforethought, and a felonious killing without such malice, and thus restrict certain cases to the grade of manslaughter, which theretofore were held to be murder.(g) It seems, however, that under these provisions many cases will hereafter be deemed murder, which previous to the revision fell under the grade of manslaughter.(h) Malice, or as the revised statutes express it, premeditated design, is the great criterion which distinguishes murder from other killing; and especially from manslaughter, which comes nearest to it in guilt. It is, therefore, of great importance to ascertain in what this malice consists. The legal import of this term is not confined to a particular animosity to the deceased, but extends to an evil design in general, a wicked and cor (d) 2 R. S. 656, § 5, 6. (e) In indictments, equivalent words are sufficient. 2 Hale P. C. 170. 4 Black. Com. 198. 8 T. R. 536. 1 Bos. & Pul. 180. 2 Gall. Rep. 15. (ƒ) People v. Enoch, 13 Wend. Rep. 159. (g) Id. ib. |