The People agt. Lewis Baker and others. more merciful view of the subject; and, considering the ignominy, the dangers of perjury, the anxiety of delay, and the misery of a prison, have argued that the grand inquest ought, as far as the evidence before them goes, to be convinced of the guilt of the defendant. What was, therefore, anciently said of petit treason, may be applied to all other offences-that since it is preferred in the absence of the prisoner, it ought to be supported by substantial testimonies." "Indictments," says Lord COKE, "being the foundation of all capital proceedings, found in the absence of the party accused, and only the evidence for the king being adduced, it is necessary that the proof of the offence should be substantial." (3 Coke Inst. 25.) In a note to 4 Hawkins' Pleas of the Crown, p. 82, we find the following: "It has been observed, with great strength of argument, that a grand jury ought to have the same persuasion of the truth as a petit jury, or a coroner's inquest." (Vide also 4 State Trials, 183.) Blackstone uses the following language: "A grand jury ought to be thoroughly persuaded of the truth of an indictment, so far as their evidence goes, and not to rest satisfied merely with remote possibilities-a doctrine that might be applied to very oppressive purposes. (4 Bl. Com. 303.) The rule, as thus laid down, I believe to be the true one. No other, in my judgment, is safe; nor is it to be tolerated that a citizen shall be charged with a serious offence, and sent to a petit jury for trial, unless the ex parte testimony, taken in his absence, with no power of cross-examination, shall at least, if unexplained, show him guilty. This is implied in the very language of the indictment :-"The jurors, &c., upon their oaths, present that A B is guilty," &c. How, upon their oaths, can they say the accused is guilty, unless, as the testimony stands before them, the proof, unexplained, would lead logically to such conclusion? Is it to be tolerated that grand juries are to speculate upon the chances of the guilt or innocence of the citizen? If the grand jury cannot say that the testimony they have taken ex parte is strong enough to lead to conclusion of guilt, is the citizen to be subjected to all the ignominy of an * The People agt. Lewis Baker and others. indictment, and the rigors perhaps of a long confinement in a prison, to the injury of his health and character, and the ruin of his business, on a suspicion merely that he may be guilty? I do not so understand the law, but as above stated—that the testimony must be sufficient in degree to convict, if unexplained. Such are the principles which must govern in the cases now before the court. The parties who apply for bail, seven in number, namely, M'Laughlin, alias Pargene, Turner, Hyler, Lynn, Van Pelt, Morrissey, and Irving, are all charged by the indictment as accessories to the murder of William Poole. The testimony shows, that on the evening of the homicide, without anticipation of a meeting by either party, Morrissey and the deceased met in a public house in this city; that they were enemies; that on meeting, a violent quarrel ensued between them, and much feeling was excited; that Poole, supposing probably he would be assaulted, drew a pistol, and pointed it at Morrissey; that Morrissey was soon furnished with one, which he snapped at Poole; that at this time Irving interfered and attempted to prevent any difficulty; and that after much excitement, but no blows given, the parties were separated by the arrest of Poole and Morrissey, both of whom were taken away in opposite directions. None of the accused were present at this first quarrel but Morrissey, Irving, and Hyler. As the parties were taken from the house, Irving also left, and was not seen in company with any of the accused again that night, and the weight of the testimony is, that he went directly home, and did not hear of the subsequent affray until the next morning. The only other testimony as to Irving is, that some months before this he had been heard to make threats in regard to Poole, and to declare his intention to procure his death. As to Morrissey, the whole testimony goes to show that, after the difficulty, he, in company with some of the accused and others, called at different drinking places; that he became very much intoxicated, and was taken home, before the second affray, in a state of senseless inebriation. There is no evidence that he conspired with any other parties to have a further collision with Poole that night, The People agt. Lewis Baker and others. or expected one; and the inference from the testimony is conclusive, that he knew nothing of the subsequent difficulty which resulted in Poole's being shot, until after the occurrence, and was then in too inebriated a state to be made to know it until the next morning. As to Hyler, Lynn, and Van Pelt, the theory of the prosecution is, that they, in conjunction with Baker, Pargene, and Turner, formed a conspiracy for the purpose of a joint attack, the same night, upon Poole, and together went to the scene of the first difficulty with that end in view. That these parties last mentioned did go to the scene of the homicide, and probably in company, is true. That a difficulty soon ensued between a portion of the party and Poole, is equally true; and Poole received a shot which resulted in his death some days after. To connect Hyler, Lynn, or Van Pelt with this shooting, so as to make either one liable as an accessory, it is necessary for the prosecution to first establish a guilty confederacy among them, having that end in view; for, so far as the proof shows, no overt act, on the part of these three parties, was committed after they entered Stanwix Hall which indicated any participation in the attack on Poole. Van Pelt, on that occasion, as the evidence shows, interfered with Pargene, one of the accused, to prevent his assault on Poole, and was knocked down for his attempt, and immediately left the house. Neither Lynn nor Hyler joined in the attack that was made, nor in any way showed a hostile purpose by any overt act. The strongest view that can be taken of the case unfavorably to the defendants, Hyler, Lynn, and Van Pelt, is, that there are strong suspicions that they may have known Poole was at Stanwix Hall, and went there with the others to attack him, or at least to witness such an attack. There are some circumstances which favor such a theory; but, so far as the circumstances in proof now go, they are not sufficient of themselves, without other proof, to warrant a finding that it was so. The case as to them, therefore, falls within the rule laid down in The People agt. Goodwin, (1 Wheeler's Crim. Cases, above cited.) As was said by Mr. Chief Justice SPENCER in that case, so I The People agt. Lewis Baker and others. am compelled to say in this, "They may be innocent of the offence." I am equally bound to say that the proof, as it now stands, would not justify conviction of Hyler, Lynn, or Van Pelt. They must, therefore, be admitted to bail. As regards Irving and Morrissey, I must go still further, and say that, upon the testimony, I am entirely clear; there is not only none on which a conviction can be had, but that the proof did not warrant the finding of the indictment. Whatever may have been the errors or the follies of either Irving or Morrissey, it will not answer to allow a precedent so dangerous to the liberty of the citizen as that of upholding an indictment based on testimony so utterly insufficient; and while the grand jury, in the proper discharge of its most responsible and important duties, will always have the firm and steady support of this court, the court must, with equal firmness and fidelity, guard the personal rights of the citizen against the consequences of so dangerous a precedent as that of sustaining or favoring an indictment, the finding of which is so utterly unwarranted by the proof. It only remains to fix upon the amount of the bail to be given by the several parties. That of Irving, having been already fixed by Mr. Justice MORRIS, will remain undisturbed. Morrissey must be admitted to bail in the sum of ten thousand dollars. Hyler, Lynn, and Van Pelt must be admitted to bail in the sum of twenty thousand dollars each. Proper notice, in each of the cases, must be given to the district attorney of the persons proposed as bail, that he may inquire into their sufficiency. As to the other two parties, Turner and Pargene, who have applied for bail, it is only necessary to say, that the application in their behalf must be denied. MITCHELL, MORRIS, ROOSEVELT, and CLERKE, Justices. INDEX. ABATEMENT-constituting a defence, should be pleaded, unless appar- PAGE ... 162 rent on the face of the complaint-then a demurrer.... ACCORD AND SATISFACTION-How pleaded and proved, in order to ACTION. A foreign corporation liable to an action in this state, upon a When and how an action, under the Code, may be brought against 363 528 1 1 1 ..... 33 What is meant by the phrase, "the cause of action arose,”...... .... 37 44 ... 46 An action against sheriff for damages in taking personal property, he 48 97 Sufficient averments in an action against a railroad company for VOL. X. 135 |