The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1858-11-14
Court OF General Sessions.
Before Judge Russell.

Court OF General Sessions.
Before Judge Russell.
sEHTRHCEs FOR BURGLARY AND FORGERY.
Nov. l3As the court was opened this morning.
the City Judge proceeded pass sentence upon prisoners
VIM. Somers, tried for the murder OF John B. Aiken
mate Of the ship Mandarin and convicted Of manslaugher
in the first degree, was sent 10 the State prison for
years--the lowest penalty the law allowed.
Joseph Lansant tried for felonious assault and con-
vcted OF an assault with intent do bodily HARM was
sent TO the penitentiary for one year
Charles Starkcy, convicted OF forgery the fourth
degree, was sent TO the State prison for two years
John Centre and Patrick Waters guilty Of burglary in
tho third degree, were placed at the bar for sentence
the State prison for two years and months while his
confederate proving an excellent character and satisfy
oSsrseS The CITY, judge said hs would Sesp hs uds
ment suspended over him, and if no committed
offence ho would send him to the State prison.
James Corc0ran was convicted o; burglary in the first
degree and sent TO the State prison for ten years and six
Jacob jaeger pleaded guilty 70 an attempt at burglary in
tho third degree, and was sentenced 70 year I'M
prisonment IN the pentcntary.
Oliver Ntchel. having pleaded guilty to forgery IN the
NplCTxENTs AGAINST cHARLEs DEvLN AND OTHERS
QUAsHED,
Judge Russell then proceeded 70 render his decision
no&iou 70 quash indictnenAs against Charles pevlin,
Charles Turner and others, for an alleged cosacy 70
defraad the pubic txcasury- r 49,
ne Psepss u Charles Deulia Charles H4yw<r, NsocA
Dean Peaw W. Dvyr a.d yames n. SmtA "A motion was
made the part OF the defendants 70 quash The indict
nent on . number Of grounds, which werc argund at
great length and with the usual ability Of the counsel who
discussed them. From the convictions entertain ia rels
ton 70 one Of the grounds urged in support Of he MOTION
win be Unnecessary ~ consider the ohen 1ne ndtct
ment in effect, charges the defcndants with having
spred together 10 dcffaud the corporation of this city
Of divers Of money and bonds by false sstcces
obtained the money and bonds in question. In
other words, the ipdictment charges conspiracy
bssn actually committed h bshaf Of the defendants il
insisted that Il the crmc u false prctences f.
lony nsr{ed the conspiracy and thst 4 was misde
previous crimnaty and that whichever IL Was, the
dctmcnt should have been for the once arising out OF
money on property by false felony thero a
pears 10 be no doubt for In the Of tho People Van
Seenburgh Parker, 39), the Court held ''That the
offence was felony, because II was liable by law 70 be
punished by imprisonment in State prison. and that it
the less felony also liable be
the question 10 whether u felony misdemeanor
the point taken appears 10 be well sustained by authority
in this State. lambert the People, Cowan, SIS;
Lohman the People, Cowan 379) The first Of these
rs decision In late Court Of Errors the other
decision in present Court of Appeals. The learned
counsel for the prosecution in the course OF his arg
ment, conceded that the Indictment found for a
spracy and that he regarded II such, and that II
regarded by the prosecution He did say, moreover,
that II disclosed the accomplishment OF the conspiracy,
IL could stand indictment for false prctcnces. To
my mind, IL IL Is claimed 70 be such, IL is plainly
bad, and could not stand as an Indictment for that
offence. The bare reading Of II makes this very oh
vious. IL was also contcnded by the same counsel
that false pretences and conspiracy were distinct
statutory Offences and that the former could not merge
absorb the latter For this, Lohman vs. the People,
cited above relied uron. II these two offences
made the subject Of prosecution against the parties
nj fnA aTnA lima
not 10 be made the subject OF different ndctnens2
rather they, as in the present case both be
bodied in the same count Of the same indictmenu The
rule " too manifest 70 require citation Of authorities 70
prove IT, that two distinct separate offences cannot be
put into the count If the present Indictment were
before me a demurrer, motion in arrest for
Judgment, should certainly hold u 70 be bad
on the ground now referred 10. The learned
counsel for the prosecution contcndcd that, upon
this notion ought not to sustain this ground--tha
the defendants should be driven 70 their demurrer II
geston Nv practice in this particular proceeds upon se
OF the People Echford q Cownn 5S5). Thsre
afser tho decision o. Lambert vs. The People ecited
abovc) by the Court Of rurs, motion adc 70 tho
Supreme Court qsssh the Indictment tho ground
nsufciency, u being similar " the indsctnsnt In Lam
ssf' .fsA sss S s'sssa @ss K pa Sss
said 'In doubtful should sustain the pre-
dees,on M he Court of Errors The ease before me IL
quite direct and strong for the decisions from our
courts Of last resort determine the point upon which
dispose Of the moton. The indictment must be quashcd
Mr.. Blunt requested hts Honor to defer entering tho
dor t Monday be could with associate
as to the course TO be adopted.
A NEW TRIAL GRANTED To RICHARD BARRY, THg
SCHOOL COMMISSIONERS.
The ciy Judge gave the suboined decision the case
Of Richard Barry, the School Commissioner, who WAS
sentenced four mouths incarceration In the penenary
by the Recorder
The People Richard Bdrry-Tlle defendant pleaded
guilty assault, and sentenced Before his term
Of Imprisonment began he brought before this Court
under r. s., 4th ed, p qoo, a. and motion made
10 quash the conviction aud sentence the ground that
the indictment 10 which he pleaded absolutely null
and void The defendant for The same matter Of fact
was the 2lst of May last indicted by two indictments
Tor assault with intent to KILL and the other for rob
berry appears by the endorsement Of the Foreman q
the Grand Jury the back 81 The adays charging the
defendant with assault with intent 70 kill Tho statute
says q X - p. glO acc s2)s-"U two Indictments
offences the FIRST found shall be deemed 70 he superscd
cd by the second The minutes Of the court show that
thendctmeni for assault with intcntto Kill FIRST found
THIS u the Indictment upon which the plea was directed
10 be sustained, and which sentence imposed Tho
plea offered by the defendant would apply either ndct.
meni Tie Of the People W Mcnrcc Oyer aud Ter.
miner 40 Wend 1881 cited by the District Attorney
20 show that the statute o isef did Hot supersede rst
Indictment, but rule must he entered application Of
the defendant But that decided on iurisdc
tional POINT the court refusing maadsmus 70 an
expired term, and was, besides, 10 superior
sn.c5 ,Se se .con % ..s e 1os' % osoSs
q The statute + not 10 lie mstskensha be deemed 70
be superseded u was argued by the District Attorney
that the facts were strong against the defendant who
ought not TO escape cchi0caes when his had
cited 20 much comment Hut the prisoner, Ear from
escapng, has by an irreguarity, suffered months i'm
prsnninenf awaiting THIS appcst aud can be arrarncd
on the proper indictment aud well said by the
Supreme Court in recent criminal reported 05
Howard, 5o4 The prisoner has his legal rights and IL
the duty o. the Court uninucnced by the rcpusve fca
turcs Of hs admitted crime, the condemna.
70 tory sec ni those rsss Ts ss'SS 10"I and
he y condemned according TO law" In the Of the
People W. Restel (3 I y JDs), Judge Bronson says
I'm our zeal TO punish crime great should be taken
not 70 make prccedeuis whh may prove dangerous 10
the innocent and u should be forgotten that
the guilty have rights which should he scrupuousy
gardcd am Of opinion tina, the receiving aud enter
ng the plea on the superseded indictment a nully.
let an order be entered Qusshng and aunulng the
vicOn and let the defendant be forthwith arraigncd
tho proper Indictment The District Attorney
ced 70 arrag gu the party the existing Indictment for
on motion can DC note pyoeYsied, and the defendant
indicted tor the assault II he prefers this hs
will b. al liberty 10 pursue H.