People v. Powers

People v. Powers. Conviction in a of special sessions. — Indictment for second offence. A certificate of conviction, made by a court of special sessions, pursuant to the statute, and duly filed, is conclusive evidence of the facts therein stated; though it do not show that the court had obtained jurisdiction of the person of the prisoner. An indictment for a second offence of petit larceny should show that the court, before which the first conviction was had, obtained jurisdiction of the person and of the offence; but this being matter of form, such objection cannot be taken, for the first time, in an appellate court. People v. Powers, 7 Barb. 462, affirmed. Writ op Error to the Supreme Court, sitting in the fifth district, where the judgment of the court of Oyer and Terminer of the county of Onondaga, convicting the defendant of the second offence of petit larceny, had been affirmed. (Reported below, 7 Barb. 462.) The defendant, Emerson Powers, was indicted for a second offence of petit larceny. The indictment charged, m general terms, that the first conviction was had, on the 31st October 1848, at a court of special sessions, held at Syracuse, before William A. Cook, police justice, having full power and authority to hold said court, and to try and convict for such offence; that the defendant (who was tried by the name of Amison Powers) was sentenced to pay a fine of five dollars; and that he paid the same, and was discharged. On the trial, the district-attorney offered in evidence the following certificate of conviction, with proof by the county-clerk that it came from the files in his office; that it was in Cook’s handwriting, and that the latter was dead. “Onondaga County, Syracuse Police-office: ss. At a court of special sessions this day held, in the town of Salina, before the undersigned, police justice of the village of Syracuse, in said- county, Amison Powers was convicted of having, on the 30th day of Oct., instant, feloniously taken and carried away one pair of pantaloons, of the value of seven dollars, the property of Samuel P. Dewey and Alexander Thompson, at Salina aforesaid; and upon such conviction, I did adjudge that the said Amison Powers should pay a fine of five dollars, and stand committed until paid; which was paid to the undersigned, and the defendant discharged from custody. Given under my hand, the 31st day of October 1846. William A. Cook, Police Justice.” Indorsed — Filed, Nov. 16,1846. The defendant’s counsel objected to the reception of this certificate in evidence, but the court overruled the objection, and admitted the evidence, to which the defendant excepted. The defendant then offered to prove that, on the evening of his arrest, upon the complaint before the police justice, he was committed for trial, and not as a person convicted; that the next morning, he was brought before the police justice, and denied the charge of stealing; that he was not tried; that he settled with the owners of the property, and was dismissed, without payment of a fine. This evidence was objected to, as going to impeach the record or certificate of conviction; and was rejected-by the court; to which an exception was taken. The prisoner was convicted on the indictment; and the conviction having been affirmed by the supreme court, he sued out this writ of error. Anderson, for the plaintiff in error. Gardiner, district-attorney, for the People. [MAJORITY — * Jewett, J.] * Jewett, J. — There are but two questions ^ ^ raised by the bill of exceptions in this case. *- The first is upon the admission in evidence of the certificate of conviction, made by the justice, and filed in the office of the clerk of the county of Onondaga; and the other is upon the rejection of the evidence offered on behalf of the prisoner, to contradict the fact of a trial and conviction, as set forth in the record or certificate of conviction. I think, that both questions were correctly decided by the supreme court, and that it is unnecessary for me, here to repeat the reasons sustaining the judgment, which are so ably given by the learned judge who delivered the opinion of that court, for giving the judgment. (7 Barb. 462.) The counsel for the prisoner, on the argument in this court, made a point, which was not noticed, if made, in the supreme court; namely, that the indictment is insufficient, because it does not charge the facts necessary to show that the justice acquired jurisdiction over the person of the prisoner, to try and convict him of the first offence of petit larceny. The point made in the court below was, that the certificate of conviction should show that the justice had jurisdiction, and that because it did not, it was inadmissible in evidence of the fact of conviction j and not that the indictment was bad, because it did not allege the facts necessary to show such jurisdiction. It is a general rule, that the facts of the charge must be set forth in the indictment, that the defendant may clearly understand the charge he is called upon to answer. In this case, it being the object of the indictment to charge the prisoner with a second offence of petit larceny, it was essential to such charge, that the . indictment should state facts to show that he had, prior to the last offence, been convicted of the previous offence in due form of law. And as the conviction is alleged to have taken place before a court of special and limited jurisdiction, the indictment should have alleged such facts as would show that the justice, holding such court, had jurisdiction as well of the subject-matter as of the person of the prisoner. (1 Chit. Or. L., ed. 1819, 138 ; Cornell v. Barnes, 7 Hill 35, and note.) * 52 1 *^le indictment in this case, in order to show ■ a conviction of the prisoner for the first offence, in due form, should have, preliminary to the statement of his trial and conviction, stated the charge made against him before the justice, and in what form, the proceedings had before him upon it, and the issuing of the process thereon, his arrest and being brought before the justice; showing thereby that there was a charge for petit larceny made in due form against him, and legal process issued for his arrest thereon; that he was arrested, brought before the justice and elected to be tried for the offence charged, before the justice, pursuant to the provisions of the statute in such cases. Such allegations would have shown jurisdiction in the justice of the subject-matter and of the person of the prisoner.. Instead of them, the indictment alleges, in general terms only, that the court before which the prisoner was tried > and convicted, then and there, had competent power and authority to try and convict him for such offence. But the objection now made to this indictment, comes too late to avail the prisoner. The defect complained of, is a matter of form merely; I do not see that it tended to prejudice him. And 2 Rev. Stat. 728, § 52, provides, that no indictment shall be deemed invalid, nor shall the trial, judgment or other proceedings thereon be affected, by reason (among other defects named) “ of any other defect or imperfection in matters of form, which shall not tend to the prejudice of the defendant.” The judgment should be affirmed. Judgment affirmed. See People v. Neilson, 16 Hun 214; Ex parte Hogan, 55 How. Pr. 458 ; Ex parte Travis, Ibid. 347. See People v. Cook, 2 Park. 12. In People v. Golden, 3 Park. 330, the supreme court, on the authority of this case, sustained an indictment, setting forth, the jurisdiction of the special sessions, in the same general form ; holding that such defect could not prejudice the prisoner. And see Gibson v. People, 5 Hun 542.