[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 381
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 382 The indictment is defective under the first section of the act of 1846, in omitting to charge an intent to destroy the child by the means employed by the *Page 383 defendant. It contains all and more than is necessary to constitute a misdemeanor within the 2d section of the act of 1845.
Mere surplusage will not vitiate the indictment, and of course is no ground for reversing the judgment. (People v. Jackson, 3 Hill, 94, and cases cited.)
It is contended, however, that the prisoner, notwithstanding this conviction, may be indicted for manslaughter, adding to the charges in this indictment the intent to destroy the child. If this were admitted it would furnish no ground for reversal. The offences created by the first section of the act of 1846, and the second section of the act of 1845, are separate and distinct, as the counsel for the defendant strenuously insists. The prisoner has been found guilty of a misdemeanor; and I do not perceive how this court, in face of the verdict and the record, can assume that the defendant has been guilty of a felony.
Upon the same principle, if the defendant had been convicted of an assault and battery, we might have been asked to reverse the judgment, because she might have been guilty of a battery with intent to kill. To constitute a felony, nothing would be necessary but to add the intent to the other allegations of the indictment.
But in the second place, I incline to the opinion that the defendant could plead this conviction in bar to a subsequent indictment for the felony, under the first section of the act of 1846. The right does not result from the doctrine that a party cannot be put a second time in jeopardy for the same offence, because as we have seen the offences under the 1st and 2d sections, are distinct, but from a principle of wider application, namely, that the accused may always avail himself of the plea of a former conviction, if the record shows affirmatively that the defendant could not have been guilty of the crime charged in the indictment.
The difference in the offences as laid in this indictment, and the felony under the 1st section of the act of 1845, t is said truly, consists solely in the intention of the criminal — the means of their commission and the consequences in either case being precisely the same. Now to constitute a misdemeanor *Page 384 under the statute, the indictment must allege, and upon conviction the jury must find, that the means charged were used with the intent to procure a miscarriage. The people therefore would be concluded by the record from alleging, in a subsequent indictment, that the prisoner employed the same means, upon the same person and occasion, with a different design.
A conviction for manslaughter is a bar to a subsequent indictment for murder. The distinction in the offences consists in the intent with which the homicide is committed. The record of conviction would show, in effect, that the killing was without malice, and would be conclusive upon the people and the accused. (Chit. Cr. L. 456; Coke's R. part 4, 146.) The case of Rex v. Cross, (1 Ld. Raym. 711,) cited by the defendant, is an authority to show that where the same facts which constitute a misdemeanor at common law, are made felony by statute, the indictment must be for felony. The case in 5 Mass. R. 106, and 9 Cowen, 578, decide that where a conspiracy is consummated, you cannot separate the agreement to conspire from the overt act by which it is accomplished. These are all instances of merger, and have no application to a case like the present, where the offences created by the 1st and 2d sections of our statutes are conceded to be separate and distinct.
As to the question put to the juror Cortelyou. The issue to be tried was whether the juror stood indifferent between the parties. This of course depended upon his state of mind. To ascertain this was the object of the examination of both parties. Upon an issue of this kind, from the nature of the fact to be established, the opinion of the juror derived from his own consciousness, was relevant, competent and primary evidence. The interrogatory put was in form exceedingly inartificial, but its effect (and to this only the objection applies) was obviously to elicit an opinion as to the strength of the impression to which he had previously testified, and whether he was conscious of the ability to render a verdict according to the evidence notwithstanding. If the juror answered in the affirmative, it would have been a declaration that he possessed such ability. This would be but an opinion, but one founded on his own *Page 385 consciousness, and so far entitled to the consideration of the triers, although by no means conclusive upon them. If he had responded in the negative, the answer would (if believed) have been decisive against his competency. For although a man may think himself impartial when he is not, he cannot be a competent juror if conscious of an inability to render a verdict without being influenced by previous impressions. The question then was equivalent to asking the juror whether he felt or was conscious that he could render an impartial verdict notwithstanding all that he had heard or read. This in effect was the question put and sustained by the supreme court, in The People v. Bodine, (3 Denio, 122.)
As to the questions proposed to Maria Bodine. It is hardly necessary to say that the answers sought to these questions would have disgraced the witness. She was therefore privileged from answering unless her answers were material to the issue. Her pregnancy was, it is true, one of the facts to be established by the prosecution, but whether induced by Cook or any other person was entirely immaterial. If her response had been in the affirmative to each of these interrogatories, it would not have been inconsistent with, or tended to disprove the fact of her pregnancy, or the agency of the prisoner in procuring the miscarriage, any farther than those answers affected her general character. The privilege of witnesses has been carried much farther in some of the cases, but all the authorities agree, that where as in this case, the object of the question is to impair the credibility of the witness, she could not be compelled to answer. (People v. Mather, 4 Wend. 250, and cases cited;Cowen Hill's Notes, No. 521, and cases cited; 1 Burr'sTrial, 244; 1 Greenl. § 454.)
As to the exception to the question proposed to Dr. Smith. It is now said that the question assumes two facts, viz. 1st. that Maria Bodine had made a confidential communication to the witness, and that he took some steps in consequence thereof; and 2d. that the communication, if made as assumed, was privileged. If this were true, the answer is, that these matters were not suggested upon the trial, nor was the attention of the *Page 386 court directed to them. The objection was of the most general character. The opinion formed by the witness upon the examination testified to by him, aided by communications from the patient as to her symptoms and the state of her health, was not only competent evidence, but strongly corroborative of her testimony. (1 Greenl. § 102.) It was a part of the res gestæ. If the physician was thereby induced (even if it was not the sole motive) to resort to the public authorities for the purpose of further investigation, I can perceive no objection to the fact being proved. The cross-examination of Maria Bodine, as is manifest from inspection, was designed to discredit her with the jury. She had stated in answer to the defendant's inquiries, the fact of her making a written statement at Walden, which she delivered to officer Boyer at that place, and minutely the circumstances of her visit to New-York after the crime was committed, and of her attendance before the grand jury. Now the defendant is not at liberty to say that this examination was irrelevant — and it could only be material with a view to impeach the veracity, or the motives of the witness, by showing her agency in procuring the indictment. In either view, the testimony of Smith was important, as it went to corroborate her statement and vindicate her motives.
We think there was no error in the judgment of the supreme court.
Judgment affirmed.