May 1803. 39 "That he is not the perfon alleged by the Attorney Gen- NEW-YORK, "eral in his plea to have been formerly convicted of grand "larceny," Referving to the prisoner a right to object to the mode of proceeding and take advantage of any irregularity that might appear. His counsel then stated they meant to contend that the proceedings not setting forth the record of the former conviction were erroneous, and the court would not pronounce the judgment prayed for. 匪 The identity of perfon and I Spencer, Attorney General. former conviction are circumftances collateral to the offence itself they do not constitute a part of the crime, and therefore may be pleaded and replied to ore tenus, and a venire awarded returnable instanter, in the nature of an inquest of office. This is the conftant practice in cafes where it is doubtful whether a criminal be a lunatic or not; fo, by analogy, the fame mode fhould now be adopted, especially as it is a matter in which the court may exercise its difcretion. 1 Hawk. 4. b. 1. c. 1. f. 4. n. (5.) Foft 50, 51. In Great-Britain, when a prisoner is to be oufted of his clergy, the fuggeftion of his former offence is by way of counterplea, and the indictment never takes notice of the previous conviction. 4 Hawk. 254. b. 2. c. 33. f. 19. n. The only mode of trying whether he has before had his clergy is by the certificate prescribed under the 3 and 4 W. and M. c. 9. f. 7. The King v. Scott & or. 1 Leach, 445. If the fection cited from the ftatute of W. and M. be compared with the 2d fection of our State Law of 14th of April, 1801, ch. 146. 1 Rev. Laws N. Y. 462, 3. the certificate ordered by our provifions will be found perfectly analagous to that required by the 3 and 4 W. and M. The first offence is grand larceny, punished in a certain manner: the fecond offence is the fame, with a greater punishIn England the second conviction is not availed of in the indictment, but when the prifoner claims the benefit of his clergy, it is counterpleaded. This makes a perfect analogy. His identity may be tried by a jury of his country, with the aid of counsel and the right to challenge, at which time he may controvert his former conviction and indictment, Therefore, on principle, it is not neceffary to connect the first with the second offence, as the repetition is no part of the crime, but collateral and only incidental to his guilt. All ment. The People V. Thos. Youngs NEW-YORK, facts that do not enter into the crime, but are mere circume May 1803. ftances, are to be inquired of in this way. The books of The People precedent are filent as to the practice infifted on, and that is an argument for the prefent mode: the form of the counterplea is warranted by Dogharty. V. Thos. Youngs. If Colden for the prifoner. There is no analogy between the present cafe and those which have been cited. It is not denied that to ouft of clergy the mode is by counterplea. The prefent fuggeftion cannot be spoken of as being of the nature of counterpleas; these are fo called because counter to what is pleaded, or claimed by the prisoner after his conviction, when he demands the benefit of his clergy. To the plea which the prifoner has put in, to do away the force of the fentence, the Attorney General interpofes his counterplea; but he cannot, after trial, suggest any new matter. the crime was as is ftated in the counterplea, or suggestion, the court below had no jurisdiction of the offence. Justices of the Seffions are oufted of that both by the common law and exprefs words of our State act of the 21st March 1801, fec. 1. Rev. Laws N. Y. vol. 1. 302. That statute, after giving the juftices a right to inquire of all offences, &c. and going on to confer on them a right to hear offences of grand larceny, has the following provifo : "Provided always, "that it shall not be lawful for any of the said courts to hear " and determine any indictment of, or for any treafon, mif"prifion of treafon, murder or other felony or crime, which "is or fhall be punishable with death, or with imprisonment "in the State-Prifon for life, but fhall caufe the indictments "for the fame to be delivered to the next Supreme Court, "or court of oyer and terminer or gaol delivery, to be held "in fuch city or county, there to be determined according to "law." The queftion then is, is this a crime punishable with imprisonment for life or not? Is not this apparent on the record? If fo, it is conclufive as to the jurifdiction. The court will recollect that the law referred to was paffed with a direct view of restraining the juftices in feflions from exercifing any authority where the punishment was fo fevere. The Legislature viewed them as a subordinate tribunal and therefore delegated inferior powers according to the confidence entertained. The practice on the prefent occafion is not fuch as has been formerly used: the mode heretofore adopted has been to make the first offence a May 1803. The People V. Thos. Youngs. tharge in the indictment for the fecond, and as this has been NEW-YORK, the line of conduct in this country, it may be considered as a cotemporaneous expofition of our law. It is afferted that, though this method might be taken, it is only matter of form it is a matter of form however which gives a jurifdiction the Legislature has taken away. It is form in one point of view, in another not. This kind of alteration in criminal proceedings is not allowable. It is neceffary that the previous offence should be made a substantive charge in the indictment for a fecond, where the punishment is augmented by Reafon the repetition, because the repetition is the crime. tells us, the second offence must be after a conviction for the firft, for it is on a prefumption of the first punishment's not having induced a reformation, that the fecond is increased. 1 Hawk. 306. b. 1. c. 40. f. 4. 1 Hale P. C. 685. 1 Leon, 295, Fleming's cafe. 3 Dyer 323, Taverner's cafe. The dif tinction between clergyable cafes and the present is this c whether clergy has been allowed or not is not traversable, but here the nature of the crime is changed by a fuperadded fact, the party therefore must have an opportunity to traverse. The time at which the second offence was committed is of the effence of the crime. The counterplea is no evidence that the fubfequent felony was after the 16th February, nor is any iffue tendered of that fact. It ought to have been formally offered. Hoffman on the fame fide. The neceffity of fuch an issue will be more evident on recurring to f. 4 of the law declaring what crimes are punishable with death or imprisonment for life: the fecond conviction must be after fuch firft conviction; if it be a question then whether the second offence was committed after the first conviction it is a fact not inquirable here, but by a jury. Before them, for an offence fubjecting to the punishment now asked, the prifoner is entitled to a peremptory challenge of twenty ; this right by the present mode is taken away: for on a collateral iffue it cannot be exercifed. Ratcliff's cafe Fof. 42. Dogharty is a precedent in point, and in the very one adduced by Mr. Attorney, the former conviction is fet forth. Spencer, Attorney General, infifted on his former arguments and that this was properly a counterplea; because, when the prifoner is asked what he has to fay why more than G * 21st March 1801. c. 58. 1 Rev. Laws, N. + 21ft March 1801. c. 6o. f. 9. Rev. Laws, N. Y. 261. The People V. Thos. Youngs. NEW-YORK, fourteen years imprisonment fhould not be awarded, he muft May 1803. allege the conviction to be on his first offence: this is his plea; then the suggestion read is the counterplea. The practice relied on has not antiquity enough to establish it, and the dif tinction between taking away clergy, and augmenting the punishment, amounts to the fame thing, for they both vary the fentence. The idea under which the proceedings have been carried on is, that the trial might be below, and the judgment here. Per curiam. The prifoner was convicted at a court of General Seffions of the peace, held in and for the city and county of Albany, of a grand larceny. The record of his conviction is removed into this court, on which a fuggestion is entered that he had heretofore been convicted of a fimilar offence. On this the public profecutor has moved for judgment of commitment to the State-Prifon for life, according to the act in such cafe made and provided, or that the prisoner take iffue on fuch fuggeftion. The court doubting of the regularity of this mode of proceeding affigned counfel. The point has been ably argued and they are now to give their judgment. From the authorities and precedents that have been laid before us, there can be little doubt, that in England, when a prifoner prays his benefit of clergy, and the question is, whether it hath not been on another occafion extended to him, this is the mode (under the appellation of a counterplea) that is generally purfued. In cafes however where the firft offence forms an ingredient in the fecond, and becomes a part of it, fuch first offence is invariably set forth in the indictment for the fecond. A fimilitude is faid to exift between the prayer of clergy in England, and a denial of a former conviction with us, and that therefore the fame mode of proceeding is equally correct in the one cafe as in the other. But on ftrict examination, there will be found to exift no analogy between them, and that we cannot adopt the fame mode of proceeding without depriving the prisoner of an important privilege fecured to him by fta tute. It is true that much inconvenience may and probably will arife from this decifion. Few convictions for second offences will be likely to take place; but the remedy lies not within May 1803. The People V. Thos. Youngs. our reach. By a ftatute of this State every person who fhall NEW-YORK, be indicted for an offence, the punishment whereof shall be, on conviction, confinement for life in the State-Prifon, is entitled, when put on his trial, peremptorily to challenge twenty of his jurors. The form of proceeding now contended for would effectually deprive the prifoner of this right. It is no answer to this objection to fay, his right of challenge may on the trial of this collateral queftion be extended to him, even fhould it be proper to allow it him on fuch occafions. He is entitled to it when tried for the principal felony, and had he not been deprived of it, might have been acquitted. Another objection, and a strong one, arifes from the circumftance of his conviction having taken place before a court of feffions. The ftatute declaring the powers of juftices of feffions exprefsly prohibits them from trying indictments where the punishment on conviction is confinement for life. Had it appeared then from the indictment that he was to be put upon his trial for a fecond offence, a plea to the jurisdiction would have tied up the hands of fuch court and have carried his caufe for trial to a tribunal that could have extended to him all his rights. We are of opinion this court can give no other judgment in the case than fuch as the feffions might have done, which exceeds not the punishment of fourteen years confinement. N. B. The prifoner was fentenced to five years. Edward Shepherd Smith and John Stanley against Jordan Wright and Ifaac Wright. For goods fhipped on deck and ejected there is no contribution; nor is the own liable as a carri THIS was an action against the owners of a ship, to recover the value of goods fhipped on deck, and ejected. The cause was tried on the eighth day of April one thoufand eight hundred and two. It was admitted, that the defendants er of the vefiel were owners of the fhip Charlotte. That the plaintiffs were owners of twelve Bales of cotton, laden on deck, to be carried from New-York to Liverpool: that, the defendants were to pay one half of the freight which was paid for goods carried in the hold; and, that the cotton, in a ftorm, was er. |