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tion in which it is alleged it was committed is | tion; an exercise of judicial power by parlisstill undetermined, and that the court had no ment without a hearing, and in disregard of jurisdiction to proceed with the trial of the the first principles of natural justice. Such indictment. This objection was overruled. bills had been passed in England, and the parAgain, the counsel asked the court to charge ties thereby condemned had been put to death. the jury that the court had no jurisdiction to The ex post facto law was regarded as a law try the indictment until the determination of which provided for the infliction of punishthe civil action. This was refused, and an ex- ment upon a person for an act done, which, ception taken. The court committed no error when it was committed, was innocent. 1 BL in refusing to hold as requested by the counsel. Com. *46. It is not a question of jurisdiction, at all. The court had jurisdiction over the offense, and over the person of the defendant, and whether the civil suit had or had not been determined was a matter of not the slightest importance upon that question. The English authorities cited in the brief of counsel only show what is said to have been the practice in the English courts, which was to postpone the trial of the indictment until after the disposition of the civil action, not because the court had no jurisdiction to try the indictment before that event, but because, as matter of judgment, it was thought better to take such a course. Rex v. Simmons, 8 Car. & P. 50, note a. The rule in Pennsylvania does not show that the court has held that there was a lack of jurisdiction. Com. v. Dickinson, 3 Pa. L. J. 164. The rule is one of convenience and propriety, addressed to the sound discretion of the court; and the attention of the court should be called to the matter before entering upon the trial, and an application made to postpone on that ground. Upon this subject, we cannot add to what has already been said at the general term.

Enlarging upon this definition as being of the same species, and coming within the same principle, a law which aggravated a crime, or made it greater than it was when committed, or one which changed the punishment, or inflicted a greater punishment than the law annexed to the crime when committed, or a law which changed the rules of evidence, and received less or different testimony than was required at the time of the commission of the crime, in order to convict the offender, was included in the definition of an "ex post facto law." Calder v. Bull, 3 U. S. 3 Dall. 386, 1 L. ed. 648, Chase, J., at 390. In the case just cited Mr. Justice Chase said that the restriction not to pass any ex post facto law was to secure the person of the subject from injury or punishment in consequence of such law; that it was an additional bulwark in favor of the personal security of the subject,-to protect his person from punishment by legislative acts having a retrospective operation. No act that mollified the rigor of the criminal law was regarded as an ex post facto law, but only a law that created or aggravated the crime, increased the pun2. It is also urged that the court had no ishment, or changed the rules of evidence in power to sentence the defendant, because the order to secure conviction. The same view of law which was in force at the time of the sen- the subject was taken by Denio, J., in Hartung tence was, as to the defendant, an ex post fucto v. People, 22 N. Y. 95, at 105. See also Sheplaw. The perjury is alleged in the indictment herd v. People, 25 N. Y. 406. Nowhere is it to have been committed in 1891, at which time suggested that legislative interference by way the statute provide 1 that any one convicted of of mitigating the punishment of an offense perjury, in any case other than upon the trial could be regarded as an ex post facto law, of an indictment for a felony, should be pun- if applicable to offenses committed before its ished for not less than two nor more than ten passage. There is no reason for any such years. Before the trial the statute was amend- holding. It was never supposed that constitued (Laws 1892, chap. 662) by leaving out the tional obstacles would be necessary in order to minimum limitation of the term of imprison- prevent the improper exercise of legislative ment, so that the punishment might be impris- clemency. There was little to fear from that onment for a less, but could not be for a greater, quarter upon such a subject. Those who term than under the statute thus amended. A framed the constitution were not engaged statute which permits the infliction of a lesser in creating obstacles to be placed in the degree of the same kind of punishment than path of those legislators who desired, by legis was permissible when the offense was com-lative enactment, to exercise clemency tomitted cannot be termed or regarded as an ex post facto law. The leading object in prohibiting the enactment of such a law in this country was to create another barrier between the citizen and the exercise of arbitrary power by a legislative assembly. It was well understood by the framers of our federal constitution that the executive was not the only power, in a government such as they were about to establish, which would require constitutional limitations. The possible tyranny by a majority of a representative assemblage was well understood and appreciated, and there were for that reason many provisions inserted in the constitution limiting the exercise of legislative power by the federal and also by state legislatures. Bills of attainder and ex post facto laws had at that time a quite well understood meaning. The former was a legislative judgment of convic

wards offenders, nor were they anxious lest those who were intrusted with power should be disinclined to exercise it with sufficient sternness. Human experience had furnished them with no examples of danger from that direction, and their anxiety on that account cannot be discerned from a perusal of the federal constitution. In many, if not in most cases, the reasons for mitigating the severity of the punishment for any particular kind of crime would apply with equal force to those cases in which the crime had been committed before, as well as to those in which the crime might be committed subsequent to, the enact ment of the law; and we are aware of no policy which prevents such a construction of the constitutional provision as would permit that kind of a retrospective act. That it materially affects the punishment prescribed for a crime

is not the true test of an ex post facto law. In regard to punishment, it must affect the offender unfavorably before it can be thus determined. It seems to us plain that there can be no reason for any other view. I do not think that the mere fact of an alteration in the manner of punishment, without reference to the question of mitigation, necessarily renders an act obnoxious to the constitutional provision. I know it is alluded to in the two cases in this state above cited,-that of Hartung and Shepherd. In those cases the alteration was not merely in the manner. It was an alteration from capital punishment, to be inflicted in a certain manner, and within a certain time after sentence was pronounced, to a punishment of a year's hard labor in state prison, and then a possibility of capital punishment thereafter, at any time during the life of the criminal, at the pleasure of the governor for the time being, with imprisonment in the mean time at hard labor. As Judge Denio said, "The sword is indefinitely suspended over his head, ready to fall at any time." It was said also by the same learned judge that it was not enough to say that most persons would probably prefer such a fate to the former capital sentence, because there were no means of knowing whether the one or the other punishment would be the most severe, in a given case, as that would depend upon the disposition and temperament of the convict. I think that where a change is made in the manner of the punishment, if the change be of that nature which no sane man could by any possibility regard in any other light than that of a mitigation of punishment, the act would not be ex post facto where made applicable to the offenses committed before its passage. The present case does not involve the question, and it is only mentioned for the purpose of calling attention to it as one which has not yet been squarely decided in this court. We have been referred to the case of State v. Daley, 29 Conn. 272, as holding the principle urged upon us by counsel for the defendant. A reference to the case shows that the court held that on account of the repeal of the statute before his trial, which was in existence when the crime was committed, the offender could not be punished, because the statute which was passed to take its place applied only to cases which occurred subsequent to its passage. The decision was made with reference to the language used in the amending act, which the court held was clearly prospective, while the absolute repeal, in so many words, of the former act, took away all right to use it for any purpose what ever. No fault can be found with the principle decided by the Connecticut court, but it has no application to this case. Precisely the same principle was decided in Com. v. Marshall, 11 Pick. 350, 22 Am. Dec. 377. In Com. v. Wyman, 12 Cush. 237, the Massachusetts court held that the alteration of the punishment from that of death to imprisonment for life was not ex post facto, when ap plied to offenses committed prior to the passage of the act. We have seen that in our own state such an alteration, under the peculiarities of the statute then under discussion, was held to be an ex post facto law I have seen no such case where such an alteration as is disclosed

by the act under discussion has been held to be an ex post facto law. In the Hartung Case the power of the legislature to remit any separable portion of the prescribed penalty was declared, and the very case of the reduction in the term of imprisonment was cited as an instance of legislative power. We are clear there is no constitutional objection to the statute.

3. There were certain letters written to the defendant by his wife. These letters were offered by the people, and received in evidence, under the objection of the defendant; and it is now urged that their admission was error, for which a new trial should be granted. The counsel for the defendant, upon this trial, had called the wife of defendant as a witness; and she had broken down in health before the examination was concluded, and became so ill that it was impossible to take her examination at the house. In order to obtain the benefit of her evidence in the case, the defendant had to come to some understanding with the district attorney, or the testimony already given would have to go out, and nothing further could be admitted. Hence, the stipulation as to the reading of all the evidence of the witness taken upon the former trial, subject to all legal objections. That meant the legal objections of the party against whom the testimony was given. When the defendant read the direct examination, it was subject to the legal objections, which the district attorney might make, and when the latter read the cross-examination it was subject to the legal objections thereto made by the counsel for the defendant; but each side was, by the very terms of the stipulation, to read the whole of the direct cross examination, as the case might be. The objection on this occasion was first made by the defendant's counsel, who refused to read the particular portion of the direct examination, which, as the district attorney claimed, rendered some portions of the subsequent cross examination (these particular letters included) admissible in evidence. The court, because of the stipulation, committed no error in compelling the reading of the evidence, and the defendant's exception to that ruling is not good. Subsequently, when the district attorney offered the letters in evidence, the defendant's counsel objected to their introduction upon the ground that they were confidential communications from a wife to her husband, and hence were inadmissible. Some expressions in one or two of the letters were undoubtedly contradictory of a portion of the testimony given by the witness upon the first trial. That particular portion of the wife's evidence the defendant had been compelled by the court to read. The people were entitled to the benefit of whatever contradiction there was. If some of the letters contained nothing by the way of contradiction, and hence might have been claimed to be inadmissible for that reason, it is seen that there was no separate and distinct objection made to a particular letter, that it contained no contradictory matter. The objection of immateriality, made by the defendant, was upon the ground that the letters only contradicted the witness upon an immaterial matter, viz., her belief as to the paternity of the child of the

prosecutrix, Miss Keating,-whether it was the child of the witness' husband, or his brother's. We think the letters which con tradicted the witness upon that question were properly received in evidence, and there was no separate objection taken to the others. Those which contradicted the witness might, as evidence, have some weight upon the question of her credibility, and the contradicters to his mistress, by whom they were deliv tion cannot be said to have been so plainly upon an immaterial matter as to have rendered the admission of the letters error on that ground. The further ground of objection to their admission was that they

Hoyt, 47 Conn. 518, 540, 36 Am. Rep. 89; State v. Buffington, 20 Kan. 599, 613, 27 Am. Rep. 193. In this case every reason upon which the rule rejecting a confidential communication was originally founded is absent. The letters were addressed by the wife to her husband, and he, deliberately violating every principle of honor and decency, gives the letered to the district attorney. A rule which would still preserve the confidential character of these letters, as against her husband, would be founded upon more sentiment than sense.

4. The charge of the learned judge in regard to the defendant not going on the stand as a witness was not subject to legal objec tion. The court told the jury that the defendant was not bound to go on the stand, and that he could say to the prosecution: "Prove your case against me. It is my judgment that the situation is such that I am not bound to take the witness stand, and the law gives me that right, and the law gives me that privilege.' I charge you that the law says there is no presumption to be taken against a defendant, by reason of the fact that he does not take the witness stand." The charge is criticized on the ground, as alleged, that the language which the judge put in the mouth of the defendant amounted to a covert insinuation that the situation was such that it would be disastrous to the defendant if he took the stand. I think the criticism ill-founded. jury were plainly instructed as to the law, and the rights of the defendant. The insinuation suggested would be unwarranted from the language used. On the contrary, the natural interpretation would be that the defendant re

The

were confidential communications from a wife to her husband. The answer to this objection is that the letters, after they had been received by the defendant, were given by him to his mistress, the prosecutrix, Annie M. Keating, and she subsequently delivered them to the district attorney, by whom they were offered in evidence. Com ment upon the baseness of this act of the defendant is unnecessary. It speaks for itself. The result, however, is to release the letters from the operation of the rule as to confidential communications between husband and wife, and to leave them open to use as evidence to the same extent as if no such rule had ever guarded them. The rule which protects confidential communications of this nature was founded upon a wise public policy, adopted and pursued for the purpose of encouraging to the utmost that mutual confidence between husband and wife, which is the strongest guaranty of a happy marriage. To this end the common law provided that all communications between husband and wife, which were of a confidential nature should be kept inviolate, and should not be drawn from either party by any pro-garded the situation as one wholly lacking in cess of law. 1 Stark. Ev. *39; Greenl. Ev. 14th ed. § 254. The law appreciated the fact that even truth itself might be pursued too keenly, and might cost too much. The gen eral evil of infusing reserve and dissimulation between parties occupying such relations to each other would be too great a price to pay for the chance of obtaining and establishing the truth in regard to some matter under legal investigation. 1 Greenl. Ev. § 240, note a, citing Minet v. Morgan, L. R. 8 Ch. App.361. The case just cited related to confidential communications between attorney and client, but the principles are also applicable and with added force, to communications between husband and wife. If, however, the privilege has been once waived by the parties, it cannot be again in voked. It is personal; so that if one overhear such a communication he may testify to it, if it be otherwise admissible in evidence. Com. v. Griffin, 110 Mass. 181; State v. Center, 35 Vt. 378, 386; Rex v. Simons, 6 Car. & P. 540. And when the husband or wife, to whom a written confidential communication is ad dressed, makes it public by giving it to another, the confidential character of the communication has departed; and it may be treated like any other communication, and put in evidence if otherwise admissible. State v. 23 L. R. A.

proof of guilt, and he was under no obligation to go on the stand and explain what as yet required no explanation. The case of Ruloff v. People, 45 N. Y. 213, 222, is authority for the correctness of the course pursued by the learned judge.

5. The defendant's counsel complains, also, that one of the witnesses for defendant was committed to jail by the court in the presence of the jury, because of the character of his evidence given while on the stand as a witness. This is not a question of legal error. The action of the court was within its power, and to be exercised within the sound discretion of the judge. That it might have a bad effect upon the jury, and thereby prejudice the defendant's case, was one of the matters to be considered by the judge before making the order; but we do not think it was legal error to make the order, under the circumstances.

We have carefully looked at and considered each and all the other grounds for a new trial which are set forth and discussed in the brief of the counsel for defendant, and we are quite clear that they do not show any errors committed to the prejudice of the defendant. The judgment should be affirmed.

All concur, except Bartlett, J., not sit

ting.

COURT OF COMMON PLEAS FOR THE CITY AND COUNTY OF NEW YORK, (Special Term).

RE Application of Ann MCCARRAN et al., | the order which is sought to be set aside, is to Vacate an Order Admitting Patrick Mc-barred by no limitation; but this contention is Kenna to be a Citizen of the United States.

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founded solely upon certain authorities hold-
ing that such a proceeding does not fall within
the limitation prescribed in the case where ir-
regularity or error of fact is assigned. These
authorities do not warrant the assumption that
no limitation (running from the date when the
facts were discovered) may operate upon a mo-
tion of this character, especially in view of sec-
tion 388 of the Code, which applies as a rule
to equitable actions (Butler v. Johnson, 111 N.
Y. 904), a motion being governed by the rules
of limitation applicable to actions. Depew v.
Dewey, 2 Thomp. & C. 515, affirmed, 56 N. Y.
657.

here apply, however, it is not necessary to de-
Whatever express statutory limitation may
termine, for the neglect of the parties to make
elapsed is fatal to the application. Corwithe v.
this motion during the great period which has
Griffing, 21 Barb. 9-14; Strong v. Strong, 3
Estate, 6 N. Y. Supp. 932, 934.
Redf.477, 485, 486, and citations; Re Salisbury's

gence of the moving parties in this regard, the
No explanation is here offered for the negli-
affidavits submitted tending to show that the
known to the affiants from the commencement
facts constituting the alleged fraud were
of the period in question.

Giegerich, J., filed the following opinion: This is a motion to set aside an order made by this court, of date of 25th of October, 1866, It is well settled that an order admitting an whereby one Patrick McKenna was admitted alien to citizenship, which contains the neces to citizenship of the United States. The ap- sary recitals, is conclusive as to the existence of plication is based upon allegations that misrep- facts upon which it depends for validity when resentations were made by the appellant, in attacked collaterally (Spratt v. Spratt, 28 U. S. 4 the course of the proceeding wherein such Pet. 350,7 L. ed.174; McCarthy v. Marsh, 5 N. Y. order was granted, relating to the period of his 263; Ritchie v. Putnam, 13 Wend. 524); but auresidence in this country prior to the date when thorities dealing with such a case in the aspect his majority was attained. The motion is of a direct attack are not abundant. The cases of made by Ann McCarran, a sister, and joined Com. v. Paper, 1 Brewst. (Pa.) 263, and Re in by Francis McKenna, a nephew of said Pat Shaw, 2 Pa. Dist. Rep. 250, however, are in rick McKenna, and appears to be made in sup- point, and I am well content to follow them, in port of ejectment suits brought in the Supreme the absence of any contrary ruling by the courts Court by the said Ann McCarran against cer- of this state so far as research discloses. These tain parties claiming through said Patrick Mc- cases hold that the civil authorities, and not a Kenna, who died on April 22, 1891, intestate; private individual, should institute a proceedthe order in question, unless vacated, being ex-ing of this character, and, to my mind, the reapected to materially affect the successful pros-soning is founded upon sound principles. ecution of such suits. As to limitations, this motion does not fall within the provisions of which attaches to the question now considered, Moreover in view of the grave importance sections 1282 et seq. of the Code, relative to the by reason of the property rights involved, the setting aside of a judgment for irregularity, in parties to be affected should certainly have re view of the nature of the proceeding attacked course to the protection afforded by the settled (Re Buffalo, 78 N. Y. 363); but apart from the rules of evidence when litigating this matter, provisions of the code of civil procedure, the and I am by no means satisfied that the proapplication, if based upon an alleged irregu-visions of section 829 of the Code of Civil Prolarity merely, would come too late at this time. Jackson v. Robins, 16 Johns. 571; Thompson v. Skinner, 7 Johns. 556; Soulden v. Cook, 4 Wend. 217.

It is contended, however, that the motion, being based upon alleged fraud in obtaining NOTE.-The above case from New York court of common pleas is reported here as an important contribution to the law on the subject of naturalization and one which no decision from a court of last resort might present within a long period.

cedure would not oppose the successful prosecution of an action to set aside the order here attacked.

This section is not in terms applicable to matter contained in affidavits submitted upon a motion, and, in my opinion, justice would require that the parties be relegated to a proper action where the question can be determined upon whatever competent evidence may be adduced.

Motion denied, with $10 costs.

UNITED STATES CIRCUIT COURT, WESTERN DISTRICT OF CALIFORNIA.

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NOTE.-Liability of bank as accommodation indorser.

The cashier of a bank has no authority to indorse accommodation paper so as to bind his bank. Blair v. First Nat. Bank of Mansfield, 2 Flipp. 111; West St. Louis Sav. Bank v. Parmalee, 95 U. S. 557, 24 L. ed. 490, affirming 3 Dill. 403.

And a national bank cannot become an accommodation indorser. National Bank of Commerce of Kansas City v. Atkinson, 55 Fed. Rep. 465.

In National Bank of Gloversville v. Wells, 79 N. Y. 498 (1880), it was stated that a national bank cannot loan its credits or become an accommodation indorser on a promissory note,but this question was not involved in this case.

The cashier of a bank has no power to accept bills of exchange for the accommodation, merely of the drawers, and no recovery can be had against the bank, by the holder of such bill, having knowledge. Farmers & M. Bank v. Troy City Bank, 1 Dougl. (Mich.) 457.

A bank is not liable on an accommodation indorsement made by the president of the bank on his own paper, under New York Laws 1840, chap. 663, prohibiting a bank association from issuing a bill or note of the association unless payable on demand and without interest. Morford v. Farmers Bank of Saratoga County, 26 Barb. 568.

In Pendleton v. Bank of Kentucky, 1 T. B. Mon. 179, which was a suit on a cashier's bond by the bank, it was said that the drawing and acceptance of a draft by him without authority would not render the bank liable.

The facts are stated in the opinion.
Messrs. Burnett & Gibbon for plaintiffs.
Mr. M. T. Allen, for defendants:
The authority of a national bank to guaran-
commercial paper is restricted to the cases

Wis. 663, 7 Am. Rep. 107, it was held that an indorsement on the note by the cashier merely for the accommodation of the payee and prior indorser, where the note did not belong to the bank, will bind the bank as against the purchaser in good faith for value before maturity.

An indorsement by a cashier of a draft, payable to his order as cashier, renders the bank liable to a bona fide holder, where the note has been fraudulently circulated by an agent of the bank, without authority. Bank of the State of New York v. Muskingum Branch of the Bank of State of Ohio, 2. N. Y. 619.

A banker was held liable for sending out a telegram, "Will pay A. H. draft $2300.00, for stock," in answer to a telegram "Will you honor a draft drawn by A. H. for $2300.00," and is an absolute acceptance that he will pay the draft, and the words "for stock" do not mean that stock was to be consigned to the acceptor of the draft. Coffman v. Campbell, 87 Ill. 98.

Where a telegram came to a bank, asking if they would pay J. T's check for $22,000, and the answer was, "J. T. is good, send on your paper," and was signed by the bank, and the vendor parted with his cattle and accepted the check as payment on the faith of the telegram, the bank was liable. Garrettson v. North Atchison Bank, 47 Fed. Rep.

867.

The former decision in this case in 39 Fed. Rep. 163, was based on the ground that it was the same as a certified check, and on the further ground that under the Missouri statute, it was an acceptance of bill of exchange in writing.

In Bridgeport City Bank v. Empire Stone Dressing Co., 30 Barb. 421, it was said that a bank is not authorized to make accommodation indorsements, but the question involved in that case was the lia-Am. bility of a corporation.

But an indorsement by the cashier in proper form, done on behalf of the bank, negotiated to a bona fide holder, concludes the bank in favor of such holder, although the indorsement was for the accommodation of another party. Bank of Genesee v. Patchin Bank, 19 N. Y. 312.

On the former trial of the same case, the court of appeals held that a bank was not authorized to make an accommodation indorsement, but if it had been proved that advances were made upon this paper in good faith on the representation that the paper belonged to the bank, it would be liable. Bank of Genesee v. Patchin Bank, 13 N. Y. 309.

A telegram offering to pay a draft for a certain sum will not bind the bank to pay a draft for any larger sum. Brinkman v. Hunter, 73 Mo. 172, 39 Rep. 492; Lindley v. First National Bank of Waterloo, 2 L. R. A. 709, 76 Iowa, 629.

Where the cashier of a bank wrote to the secretary of the treasury, saying that the bearer was authorized to make a contract for transferring money from New York to Louisiana, and such transaction was not within the power of the cashier, the bank is not liable for the money which the secretary advanced to this agent. United States v. City Bank of Columbus, 63 U. S. 21 How. 356, 16 L. ed. 130.

In the main case where in answer to a telegram sent to the bank, "Will you pay B's draft on G. by the 16th of next month for $6,000?" the answer was "Yes" it was held that this was a promise to answer for the obligation of G. which the cashier had no

In Robb v. Ross County Bank, 41 Barb. 586, where the cashier of that bank had indorsed a bill of ex-power to make. The court says, however, that if change, it is said that even if Ross County Bank had never owned the bill or had no interest in it, that fact, if proved and found, would not have affected the right of purchasers for value before maturity, to recover.

the bank had promised to pay a draft on it, and
the plaintiff had parted with money on the strength
of that promise, the ruling would be different, and
this is sustained by the cases supra.

In this note cases on certified checks and certifi
LT.

In Houghton v. First Nat. Bank of Elkhorn, 26 | cates of deposit are not included.

See also 24 L. R. A. 263.

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