It may well be claimed, I think, that the Court of Oyer and Terminer had jurisdiction to try the prisoner, without any order from the Court of Sessions, sending the indictment to the former court for trial. It is supposed that the right to hear and determine all crimes triable in the county, and of general jail delivery, given by the statute to courts of Oyer and Terminer, is abundant to confer jurisdiction on that court to try indictments found at the sessions, without any order from the latter court.* In two of the cases cited, the powers of the Court of Oyer and Terminer are elaborately discussed. In The People v. Gay, Sutherland, J., remarks as follows : “ It is correctly observed by the counsel for the People, that their power of general jail delivery, conferred by the statutes, must be considered at least as ample and comprehensive, as that conferred upon the justices of assize at common law, by their special commission to deliver the jails ; ” and he adds, that in relation to them, “it seems to be well settled, that they may. try indictments found before other courts, as well as those found before themselves, when the prisoners are in jail.” So in The People v. The Judges of Dutchess Oyer cmd Terminer, Strong, J., says: “ Their statutory powers are identical with those expressed in the commissions to similar tribunals in England.” And in The People v. The Gen. Sess. of N. Y., the same learned judge remarks, as follows: “ The indictment against the relator was found and presented at the general sessions, * * * and was triable before the Oyer and Terminer, whether sent there by the sessions, or *27removed by an order of a justice of this court, or county judge, or without either.” In Quimbo Appo v. The People, Selden, J., in speaking of the commission of gaol delivery, says, that it conferred authority upon the commissioners, “ to deliver the gaol of all prisoners found therein upon their arrival at the place where the court is held, and by virtue of this power they try all indictments, whatever the offense or wherever found.” * But I do not deem it necessary-to hold in this case, that the Court of Oyer and Terminer had authority to try the prisoner, without the order of the Court of Sessions sending it to the former court for trial. With such order, the authority of the court is not questioned. The statute expressly declares that the Court of Oyer and Terminer and jail delivery, shall have .power to try all indictments found in the Court of Sessions of the same county, which shall have been sent by order of such Court of Sessions to, and received by, the Court of Oyer and Terminer, † In this case, such order was, as I think, shown to have been granted, and duly entered in the records of the court. When the question as regards the existence of the order, was raised, the record showed that such order had been made by the Court of Sessions: 1st. By an indorsement on the indictment; and 2d. By an order entered in the minutes kept by the clerk of that court. These entries may have been informal, but they were good in substance to show the order of the court, to the effect that the indictment should go to the Oyer and Terminer. Such is their plain import; and, as presented by the entries themselves, they appeared as the record of the Court of Sessions, made by its duly constituted officer. FTor was the record at all impugned by the oral proof, granting that it might be thus impugned. As regards the indorsement on the indictment, the clerk testified that it was made at the time the prisoner was -arraigned, and entered his plea, and that it was in compliance with the direction of the court; and, as regards the order in the clerk’s minutes, he testified that, although he actually made the entry of it at the opening of the trial in the Court of Oyer and Terminer, yet it was pursuant to the direction of the Court of Sessions, and it was entered in the blank left in the minutes therefor.
*281 am of the opinion that the direction of the Court of Sessions, evidenced by the indorsement on the indictment, was a substantial compliance with the statute authorizing that court to send the indictment to the Court of Oyer and Terminer, and empowered the latter court to try the prisoner thereon. There is no statute declaring how the minutes of the proceedings shall be kept. The indictment, with the prisoners plea of not guilty thereon, was a record in that court, and the entry indorsed in conformity with the direction of the court, became part of such record. All were kept and filed together. They became and were the record of the court, as to the proceedings in the court against the prisoner for the crime with which he was charged; and together they must stand for what they import.
But let the entry on the indictment be disregarded and go for naught, and it then appeared that the indictment was sent by the ■order of the Court of Sessions to the Oyer and Terminer. This appeared from the entry in the minutes of the clerk of that court. True, the order was not actually entered during the sitting of the court, and in its presence, but, superadded to the legal presumption afforded by the order itself on its production duly entered by the proper officer, to the effect that it was directed by the court when in session, we have the uncontradicted testimony of the clerk, in verification of the fact. It was not necessary to its validity, that the order or direction of the court should have been actually entered during its session. It was sufficient, if the facts as they really existed authorized the entry.*
It is a well settled rule, applicable as well to criminal cases as to civil, that a party cannot be heard to complain on account of the mere omission of the clerk, when a substantial right is not involved; .and especially is this so, when the formal omission may be instantly ■supplied. Here the judicial act had been performed. The decision of the court had been declared. Its direction had been given, and the entry or recording of the decision and direction, was but a ministerial duty devolving on the clerk. So, as was said in substance in one of the cases cited, the formal entry of the order or *29direction of the court as actually declared, could be made at any time when necessary for the purpose of evidence.
The considerations above suggested, lead to the conclusion that the indictment in this case was properly in the court of Oyer and Terminer, and that it was competent for that court to try the prisoner thereon.
It is next urged that the indictment was without a caption. The answer to this objection, stated by the counsel for the people, is complete; that the caption formed no part of the indictment, and could be affixed by the clerk, at any time, with a view to the perfecting of the record.
While the indictment remained in the Sessions, a caption was unnecessary, and it only became requisite on its removal to the Oyer. The affixing of the caption was important, only, to show the history of the proceedings against the prisoner. The prefixing or attaching of it was but a ministerial act, and it was' well performed by the clerk in this case, if indeed, its omission could be urged against proceeding with the trial in the Oyer and Terminer.
We are now brought to a consideration of the case on the evidence, and on the exceptions taken to the judge’s charge, and to his refusal to charge as requested.
The evidence on which the prisoner was convicted, was, as it seems, purely and entirely circumstantial. It is not before us in detail. Portions of it only are given, with a view to present the questions intended to be raised by the exceptions. But as to most of the facts and circumstances, it is stated simply in the case before us, that evidence was given showing their existence, or tending to their establishment before the jury.
As regards those facts and circumstances, in so far as they are material and necessary to support the verdict of the jury, we must hold them to have been satisfactorily proved.
The case is a remarkable one, resting as it does on a great number of circumstances, many of them apparently insignificant when considered as isolated facts, but when arranged in logical order, and applied to the prisoner, with the view of determining his motives and designs, they form a basis for probabilities leaving nx> reasonable doubt of his guilt. Certainly, the fair deductions fro rathe proof were decidedly against him. The discovery of the imple*30merits with which the burglary was evidently attempted, and the proof tending to connect the prisoner with their possession, attempted concealment and use, afforded matters of just and fair consideration for the jury, and their conclusion must be accepted as the truth of the case.
It is supposed by the prisoner’s counsel, that some facts admitted in evidence were of questionable character, as circumstances pointing to the complicity of the prisoner with the criminal act charged, but I find none so remote and irrelevant as to have demanded their exclusion. The exhibition of the tools before the jury was proper, as the case stood on the facts disclosed ;* so also was' the introduction of the newspaper found with them; as-was also the fact of the prisoner’s flight from jail, although this latter circumstance, while admissible, was of little significance in this case.
FTor was there any ground for exception to the charge of the judge, or in his refusal to charge as requested.
I think the remarks of the learned judge to the jury eminently fair on the facts, and sound in law. He stated, in explicit terms, that the prosecution was bound to prove the case against the prisoner ; that if, after careful consideration of the case, they found that the evidence was consistent with the theory of defendant’s innocence, they should not hesitate to acquit him ; that unless they were satisfied of his guilt, beyond a reasonable doubt, on legal evidence, he was entitled to an acquittal. This was equivalent to a charge, as requested, that the evidence must be of such a character, as to exclude to a moral certainty every other hypothesis than that of guilt. The learned judge said explicitly, that if they found that the evidence was consistent' with the defendant’s innocence, they should acquit him; that they should be satisfied of his guilt beyond a reasonable doubt, or he was entitled to an acquittal. This the judge was not bound to repeat, even in different language. Having fully and correctly stated the law on the subject, it was not error to decline further to remark thereon.
Many other exceptions were interposed, but none of 'them are deemed to present any ground of error; nor are they considered of such importance as to require particular comment.
*31We are of the opinion that the record discloses no error, and that the conviction and judgment should be affirmed.
Present—Miller, P. J., Bockes and Boardman, JJ.
Conviction and judgment affirmed.
2 R. S., 205, sec. 29 ; The People v. Gay, 10 Wend., 509; The People v. The Gen. Sess. of N. Y., 3 Barb., 144; The People v. The Judges of Dutchess Oyer and Terminer, 2 id., 282; Quimbo Appo v. The People, 20 N. Y., 531, 543, et seq.)
See, also, 1 Chit. Crim. Law, 142, 143 ; 4 Blac. Com., 270.
2R. S., 205, sec. 30.
12 East, 67, etseq.; 1 East, 186 ; 6 Hill, 38; 3 Wend., 314, 319.
7 N. Y., 445 ; 30 id., 372 ; 35 id., 491.