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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 542 The defendant was indicted for murder in the first degree in killing one Ann E. Maybee, in the town of Oyster Bay, Queens county, on the 17th day of November, 1883, and was tried and convicted of the offense in the Court of Oyer and Terminer held in said county on the 14th day of April, 1884. The jury rendered a general verdict of "guilty" without designating the degree of the crime.
Various questions were raised upon the trial and are now presented on this appeal, and, so far as they affect the legality of the proceedings and the conviction of the defendant, will receive due consideration.
The first question presented upon the argument relates to the organization of the grand jury which found the bill of indictment against the defendant, and it is insisted that the court erred in refusing to set aside the indictment on the ground that it was not found by a legally organized grand jury. This question was raised by a motion to quash the indictment, which was based upon the affidavit of the defendant's attorney wherein he set forth that he had made diligent search in the clerk's office of Queens county for a copy of the order of the court or board of supervisors, summoning the grand jury for the term of the Court of Sessions at which the alleged indictment against the defendant was found, which should have been filed as required by statute, and that there was no record of any order by the court or board of supervisors, summoning a grand jury for the said term, and that the summoning and impaneling of the said alleged grand jury was irregular and without warrant of law. In opposition to this affidavit the record from the county clerk's office was produced, showing the appointment by the county judge of Queens county of the times and place of holding terms of the County Court and *Page 545 Court of Sessions, and designating those terms at which a grand jury should be summoned, as required by law, among which was the one at which the indictment against the defendant was found; also proof of the publication of the notice for the holding of courts in the county of Queens as before mentioned in accordance with the statute.
The claim of the defendant's counsel is that section 45 of the Code of Criminal Procedure, under which the notice and publication referred to were made, has no relation to the formation of grand juries, and that the main object of that section is to provide for the holding of Courts of Sessions in counties other than New York and Kings, and that the provision in it respecting grand and petit juries is only an incident. The point urged is that the grand jury by whom the defendant was indicted, was not directed to be summoned by the court or board of supervisors in pursuance of sections 225 and 226 of the Code of Criminal Procedure, and that they were drawn in violation of section 227 of said Code, and, therefore, no authority existed for the drawing of the grand jury in question. The question presented requires the examination of the various sections of the Code referred to, and any other that bears upon the subject. By section 45 it is declared, "a Court of Sessions must be held at such times as the county judge of the county, by order, designates, and at the place where the County Courts are held for the trial of issues of fact by a jury. Such order must designate the terms at which a grand or petit jury, or both, or neither, is required to attend; and neither a grand jury nor a petit jury is required to be drawn, or summoned to attend a term thus designated to be held without a jury. The order must be published in a newspaper printed in the county, for four successive weeks previous to the time of holding the first term under such order." This section is a part of chapter 2, title 5, part 1, of the Code of Criminal Procedure, which relates to Courts of Sessions in counties other than New York and Kings. Under this section, as we have seen, an order was made designating the times when and *Page 546 place at which Courts of Sessions in said county should be held, and the terms when a grand jury would be required to be summoned; and due notice was given of the same as the law required. By section 46 provision is made for the drawing and summoning of a grand jury where a county judge omits to designate the terms in accordance with section 45, and in case of such neglect, grand juries are to be drawn and summoned for each of the terms mentioned in the order provided in section 45.
It is quite manifest, we think, that the grand jury which found the bill of indictment against the defendant was lawfully drawn and summoned in pursuance of section 45 above cited. As the terms were named, in the order of the county judge, at which grand juries were to be drawn and summoned, he provisions of section 46 have no application.
A lawful grand jury having been drawn and summoned, and the indictment in question found by them in accordance with the provisions cited, such indictment must be held to be valid, unless it is made to appear that the proceeding was in conflict with the other provisions of the Criminal Code already referred to. Such, we think, was not the case, and the provisions of the Code relied on by the defendant are in entire harmony with sections 45 and 46 (supra), and constitute a part of a system by which grand juries may be drawn and summoned to meet exigencies under all circumstances, as will be seen by an examination of these provisions. Section 225 declares that grand juries must be drawn for Courts of Oyer and Terminer, except in the city and county of New York, and the county of Kings, and except for extraordinary or adjourned terms; for the Court of General Sessions of the city and county of New York, and the Court of Sessions of the county of Kings; and the City Courts whenever an indictment can be there found. It will be observed that no provision is made in this section for the drawing of grand juries for Courts of Sessions in any county except New York and Kings, and it has no application to any county in the State except to those named. As we have seen, grand juries for the Courts of Sessions *Page 547 of such other counties are expressly provided for by sections 45 and 46 already cited.
Section 226 provides that a grand jury may be drawn for every other Court of Sessions (not named in the preceding section), when specially ordered by the court or by the board of supervisors. This section was intended to provide for the drawing of a grand jury when no designation had been made by the county judge in pursuance of the provision of section 45, or where special circumstances existed which required that a grand jury be drawn and summoned independent of those which were provided for by the sections of the Code already cited. There is no absolute requirement that a grand jury must be drawn, but merely a declaration that it may be, thus leaving it a matter of discretion to be exercised as circumstances might demand. Section 227 is as follows: "If made by the court or a judge thereof, the order for a grand jury must be entered upon its minutes, and a copy thereof filed with the county clerk at least twenty days before the term for which the jury is ordered. If made by the board of supervisors, a copy thereof, certified by the clerk of the board, must be filed with the county clerk at least twenty days before the term; and when so filed, is conclusive evidence of the authority for drawing the jury." The difference between the cases last provided for and that contained in section 45 is very apparent. In section 45 the publication of the order must be for four weeks before the holding of the first term under the order, while in section 227 it is to be filed in the county clerk's office at least twenty days before the term. These various provisions are not inconsistent but essential to complete a system by means of which grand juries may be drawn and summoned as occasion may require.
The designation by the county judge of the terms of court at which Courts of Sessions shall be held is an order of that officer made in pursuance of the statute, which alone authorizes the holding of such courts, and it specially designates those courts at which grand and petit juries shall attend, and a direction and notice to the county clerk to draw said jurors and *Page 548 to the proper officer to summon them to attend. This is manifest from the provision contained in the same section (§ 45) that "neither a grand or a petit jury is required to be drawn, or summoned to attend a term thus designated to be held without a jury." There is no ground for claiming that the order is not effective because section 45 does not require that it should be filed in the office of the county clerk, and no reason exists why the publication of the order, of itself, should not be a notice to the county clerk, as it is to other persons, of the holding of the courts therein mentioned. It is the duty of the county clerk to take notice of the holding of courts required by law; to give the proper notice of the drawing of the panel of jurors, and, in connection with the proper officers whom the law designates, to draw the same. (Code of Civ. Pro., §§ 1042, 1043, 1044.) When this duty is performed, the panel is perfect and complete, and a grand jury thus drawn constitutes a body duly authorized to find bills of indictment.
As there is a distinct enactment by section 45 (supra), under which grand juries may be drawn and summoned for Courts of Sessions in the different counties of the State generally, and as the grand jury which indicted the defendant was organized in accordance with these provisions, there is no ground for claiming that it was illegally constituted and had no authority to find the indictment in question.
Upon the trial the defendant interposed a demurrer to the indictment against him upon various grounds which the court overruled, and the defendant excepted to the decision. It is urged that this was erroneous for the reasons which will presently be considered.
It is said that the indictment was drawn in defiance of sections 273 and 275 of the Code of Criminal Procedure.
By section 273, all forms of pleading in criminal actions, heretofore existing, are abolished, and the forms provided by the Code substituted in their place. Section 275 provides for the form of the indictment, and declares what it shall contain, and among other things, a plain and concise statement of the act constituting the crime, without unnecessary repetition. *Page 549 The claim that the provisions of this section have been violated cannot be upheld, nor can it be said that the phraseology employed in the indictment is so uncertain and difficult as not to be comprehended upon a perusal of the same, or that it does not intelligibly and fairly present, in language sufficiently plain and concise, the real character of the offense intended to be charged against the defendant. We are unable to perceive any such deviation from the rule prescribed by the statute, as would justify the conclusion that the indictment is demurrable on that account. The indictment contains four different counts, charging the commission of the offense in somewhat different forms. While to some extent it follows the old form prior to the enactment of the Code of Criminal Procedure, it cannot be said that it contains useless and unnecessary words which violate its provisions. In view of the circumstances connected with the crime with which defendant was charged, it contained a plain and concise statement of the crime alleged within the spirit and meaning of the Criminal Code. It is not pointed out to us, nor are we able to discover any language in the indictment which evinces a disregard of the provisions of the Code, or a deviation from the principle intended to be established thereby.
Nor is there any ground for the claim that the indictment charges more than one crime. Although it contains different counts, it merely states the commission of the same offense in different forms, so as to meet the evidence which might be presented upon the trial. As there was no direct proof, by an eye-witness, of the commission of the offense charged, and as it was connected with the commission of other crimes, it was entirely competent for the pleader to allege in different counts such facts as might, by possibility, be presented upon the trial, and as the proof as to these could not be anticipated with exactness, such allegations were proper and within the provisions of the Criminal Code. There is nothing in these provisions which compels the pleader to confine the indictment to a single statement of the facts where the proof is uncertain. The object of the pleading is to inform the defendant of the crime alleged *Page 550 against him, and when this is done, without needless repetition, it cannot be urged that he has not been fully advised of the character of the crime for which he is indicted.
Nor can it be said that each of the counts charges the crime to have been committed in precisely the same manner and by precisely the same means. On the contrary, the indictment contains allegations in each of the counts showing a somewhat different state of facts and varying the circumstances under which the crime is alleged to have been committed. This is in strict accordance with the provisions of the Code of Criminal Procedure, and furnishes no ground for a demurrer, and there was no error committed by the judge in overruling the same. The trial judge did not err in receiving the general verdict of guilty. The indictment contained four counts, each of which charged the commission of the crime of murder in the first degree, and the judge, in charging the jury, stated to them that the indictment was for murder in the first degree, and that under it, they could convict the defendant of any of the degrees of murder or manslaughter which under our statute made up the general designation of the crime of homicide. At the close of his charge the defendant's counsel asked the judge to charge that, if the jury should convict the defendant under the indictment, they must, in their verdict, find the degree of the crime of which he is guilty. In response to this request the judge charged that they might find him guilty, or if they found him guilty of any thing but murder in the first degree, they must then specify what the crime is. No exception was taken to this portion of the charge. The jury having retired, returned into court and rendered a verdict of "guilty." Defendant's counsel then moved for a new trial, but no exception was taken to the verdict as rendered, nor does it appear that any motion was made in arrest of judgment on the ground that it was erroneous. It would thus seem that the defendant's counsel acquiesced in the submission of the case to the jury in the form in which it was presented in reference to the rendition of the verdict and to the form of the verdict asrendered without interposing any objection whatever to the same. Without, *Page 551 however, determining the question whether the defendant's counsel waived his right to interpose an objection, upon appeal, to the verdict, we think no error was committed either in the submission to the jury or in receiving the general verdict of guilty.
Section 10 of the Penal Code provides, "whenever a crime is distinguished into degrees, the jury, if they convict the prisoner, must find the degree of the crime of which he is guilty." This provision must be interpreted in connection with others which have a bearing upon the subject, as will be seen by reference to the same. By section 436 of the Code of Criminal Procedure, "the jury may either render a general verdict, or when they are in doubt as to the legal effect of the facts proved, they may, except upon an indictment for libel, find a special verdict." By section 437, "a general verdict upon a plea of not guilty is either `guilty' or `not guilty'; which imports a conviction or acquittal of the offense charged in the indictment. Upon a plea of a former conviction or acquittal of the same offense, it is either `for the people' or `for the defendant.'" Taking these provisions together it is apparent that section 10 of the Penal Code must be construed with the qualifications and restrictions contained in sections 436 and 437, supra, of the Code of Criminal Procedure, and where, as in this case, the indictment charges the degree of the crime and the verdict is the general one "guilty," it is not essential that such degree should be specified in the verdict. Any other interpretation would render the provisions contained in the last two sections cited inoperative and of no avail. The object and intention of section 10 of the Penal Code evidently was to guard and protect the rights of the defendant so that the court in inflicting the punishment might be advised of the exact nature of the crime of which he was convicted. That object is fully accomplished where the indictment specifies the degree of the offense charged and the verdict is a general one of "guilty." The finding of the jury of the general verdict of "guilty" was, under the circumstances, equivalent to and in fact a verdict of guilty of murder in the first degree in view of the fact, especially, *Page 552 of the instruction of the court that if they found the defendant guilty of any other degree they should so state in their verdict. It follows that the verdict of the jury as rendered furnishes no ground for a reversal of the judgment.
There are no other questions presented in the case that require an extended discussion.
Numerous questions were raised on the trial upon the impaneling of the jury in reference to the evidence given on the examination of some of the jurors as to their qualification to act as such. After a careful examination of the various questions raised we are satisfied that within well-settled rules, sustained and upheld by the decisions of this court, no error was committed by the judge in any of his rulings, and that all of the jurors who were sworn were legally qualified to act as such, and we do not deem it necessary to discuss at length the objections urged in regard to this branch of the case.
The claim that the trial court failed in its duty in not admonishing the jury as required by section 415 of the Code of Criminal Procedure has no merit. We are not referred to any portion of the record from which it appears distinctly that this was not done. No question appears to have been made on the subject, and no exception is presented which raises any such point.
We have examined the other points which have been urged upon our attention by the defendant's counsel and we do not find that in any of the rulings upon the questions referred to, any error was committed by the judge upon the trial.
The charge against the defendant involved the murder of two persons, and was connected with a burglarious entrance into the house where they lived and a violent assault upon a blind and infirm old man, and also a felonious taking of property and money from the premises. The trial was conducted with entire fairness, the defendant was defended by able counsel and the verdict of the jury was fully sanctioned by the evidence. A careful examination of the whole case leads to the conclusion that no error has been committed to the prejudice of the defendant. *Page 553
The judgment of conviction should be affirmed and the record remitted to the Supreme Court with directions to proceed according to law.
All concur.
Judgment affirmed.