New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1875-06-16


he I'd Indictment the legislature 81 that STATE enact
statute PROV dine that 1.-TWO counts describing
dctmrnf depending upon ihc same facts Transactions
provided thai The different counts therein are drens
descriptions OF The same ac Genera Si0uis Of 1861
Of tho theory Of cnsulaasc ecnf aons ami pirilnni,
ment for the SAT- act and even 10 excise ci.cs Bgr
ci,s saf espeif statute /" that ga fIg,yacs.
the sanc complaint and several ofrcns. tried 1T ne
same Time ard successive convictions had but ias
co%nIsi;7 orindctmenf, or Al one term Of Tie coat 81
such violations, shah not exceed one year" rae 90
el,i Ien nom n dTcns St esiInca s. the pDo
oufloi II IN conflict with me stlcd law ~ 1s OF In.
gland a. Of This state, as wOld SANCTION INC uuDD u
several feonics.
JUDICIAL SENTIMENT oN rGg QUESTION
We have been referred 10 other preced' n' IN sup
port Of the doctrines CLAIMED which c1'l for special
otscry ton while the general current Of Judicial sent.
mont In tl,ar St,ies ia decidedly lverse 10 IT, o,
We ADOPT La doctrine thar several Didoooa Bof- may bs
Joined doctrine OF conpaI4lHe! n''',s SyM.n, rt
ielo1los ana misemean0rs wDH there is aEy dsinc
ton in principle far as this inquiry j. concerned aDd
whether the Distinction assumed "a exist und ~. Law
Of niand. il sound there nave any Application
under the laws % this state "A very brei summation
will show that The Reasons assigned In ineiand 'or riis
distinction even If sound there. arc toiaY pappa-
cable here. In tho hrit place 1t Is material
10 observe int tc punishment for mi 1nueanufs boz FL
gland a. nj tine time when ihis doctrine VA o0nn
cated thcre, in the generality 0i as,s a'ciecn1s WIN
tic court The cont dd unli.ed power 10 sc'i, hoo
for any however long. Th6 term w." no =. here,
defined and Eiuited Dy tuie consequently albosh
prisoner might d. s'ln -i,ed 10 Nipts sur save
terms OF imprsOpmeHt different counts ~ TIE same
ipctine. 1t could nos DC saEl tnat ibe a4Sc 'it "
the-. terms was greater than tbc CONT had power 10
impose II il choose 10 10 AZ, ON elthe 81 GOWNS Bat
the main reasons Designed IN tho Lhsii'h ,r' io' -"
distinction in tAis rslect between Ieo"ieS anu m.se
mcanOrs are these:
Tho jadg say that prisoner cannot be sicd for ya
would enbariss him IN his dcensc confound lac jrTy,
and cOnfOuni the prisoner AMI lTsJudler nm m MS cna
icnSe OF the jury-the Nv 81 IDSaht d"Hnig 1" iur
pri, ner Il certain number Of pctcnptoy challenges IN
Gases Of felony. Bat they tha DDS objection Ia tue
loljer nj several ohenses IA one hd leht dVe, Do' .x
ist OF misdcmcaDor, bcfdHso IN uioSe cases, Oy
tn. law of En giand the prisoner had no risht ~ per
emptory chaienge. Hence athyiish uiaeient Ie,"ne-
cannot bB tried uDd 4 thc same 0l.ihei uI'tci mr.
demeanoPs 10 X not easy to perceive why uniting
several charges Of different onnse, In me saline ihdet
not likely TO emDa,asr he prisoner IN MS de-
nisauor as Ia OF loloDy: Dnt perhaps the
EnssI judges, in view o, me entire cvh, 70,
conduct the trial, and the amount Of punishment 20
he Inflicted in of ms,maanor., considered II va,
in TINT OF while they cou' not cvercse ike
powers ia cases OF Ieon! III wheh tHc punishment wa,
nslemranors lmitedby statute in ID cases may not
give very good explanation OF the grounds OF the dis
tinctOu ia England between indictments for inrdeneau
ors and feomes but IL IS owing 10 the difficulty Of
finding any blitor ground Tor saen distinction 70
essential difference between the law of this State
and mat OF England, ana Que ,, which tn ly
there depends is that in ts state the right OF Ircp-
tory challenges is secured by statute in OF missile
meanors as wei as in cases Of felony. Ine reason
assigned in ENGLAND for not allowing prisoner To- b.
tried Tor clOnles AT t' sdni" time aples ntsc
with elnai force to trails for nls,ltnrlnOis.
Had tic charge preferred IN tdc several counts o the
Indictment in present ease constituted ion'es ~ de-
fined in our statutes and had the Cont on receiving tic
yeldic OF the Jury oonvctinS The prisoner upon al or
any number ~ The counts, rendered separate sen
telcas upon each for successive terms OF hspfis-
onment exceeding in the as-Icsaie no mahliadm
which the Court was empowered ~ siainto 20 lli"se
for TIE of nse charged IN any o. the counts innk y
sS 10 mem a az ds s1S, 10 sn ar , tc s
nunty the sentence in re- poet to 81 cXces. H. thero
fore have endeavoIcd T. show, tue Centt poerrscd
no greater power conviction upon an irdcn ht iDr
mss. than upon an pd :tmen idr tcionie- ie
conclusion Is very plan ANA simple th"t 80 I' oi nc
Imprisonment authorized by law for any % the mLae~
neanoIs OF which the prisoner was convicted 10 Void Tor
want Of power IN the tOurt "a render II.
brcf reference The statutes in relation 10
indicted, may throw soma Light upon TIE subject The
oensc for which The prisoner wa, indicted ond fried m
t.is case was wul uegicft Of duty ,ono1 upon him
By Law, VIZ: that OF auditing ccrhn liabitl 81 ie
County 0f New-York urder the actor 1870 Whatever
other 0enseS he may have commits d. that was TIE only
oie or weh nc "s 'i, 49, u g5icS y as ini
proiseuiion sn Inc s' =, = s Sec a. wh" any
dGty is shall be cnjJned by law n0u any puOiio OH
poymen every wlrfui neglect 10 perform such duty.
when no special provision snail nave ben m-is
boz int pnS Ror Tunhabe as hcra pr .cr
section 40, p. 6y7 declares the punishment, ami pro-
mi ,cnc1nor the punishment OF which Is not prescribed
in this or Other statute, snail he punsh'l by l-
P5, ne nai IN or by hSt such me l I'M
prisonment." Clearly there is nothing in this provision
on INV one Indictment Inc Indictment in he present
contained 220 counts each of which assumes 70
charg. separate wif neglect Of iuy, suppusins that
the matter charged IN each count constituted separate
laely indicted and TIED and punished. Yet, lcn hey
are all united in Indictment and tial I'm no sat-
sfactory authority for the rendition OF more than one
JUL ,n,.nt. AitaOIgh the prisoner may nave escesei
MS duty on 220 occasions ahd The chare OF ne-"el 81
duty may have been proved against MIN the tFin
22O thneSovcr, all that tie court had power 70 9uodse
was that he was gully of mls'emcannr. and tiat he
the stltnc. The very Xt section OF the statute shows
that cumulative punishment on one trial could not have
viies that the court before whom any person sii 10
convicted Of an onense pnnlNDle by imprisonment "a
n county Jail" whr + tire ease, may sentence such
person TO Imprisonment in solitary cell in such JAIL IL
any such be erected but such mprisenment shall IN no
severity OF that description OF punishment solitary
confinement, is Recognized by the Legislature by moyi
shall exceed 80 days Can il be conceived thar tho
Legislature intended or supposed that III ease Ike this
220 of could be charged. and 80 convictions had,
each OF an ofsnse punishable by Imprisonment in a
mcnI Of 10 DAYS each inficted-a punishment which
writers upon this subject have stated regarded M moro
than the death penalty, aud one which out
few prisoners long survive!
That this doctrine OF cumulative punishincnts on one
Indictment could never have entered the mind OF ne
Legislature il made still more clear 10y reference the
general provisions relating to nsdemcaiOis lake Ono
2 T. s 695 section o. provides that "eyery person who
shall by ms ac or NEGLECT male oasy XII na wound TOT
any oter animal bcmgng 10 himself Or anone sha upon
lcilOn, bc dilJudscl Siiuy OF Il hl>d'nrdhoI.,
were convicted under one indictment con
tanng counts, Of III treating 100 different sheep. the
rule t 20 be introduced by the prosecution II csao
lishcd would authorize Court in to 100
years of Imprisonment loo ter 0t 30 days each OF
solitary confinement II the power exists To inlet cnmt
laye sentences, such sentt Is supposed could not
be reviewed By higher court, for il wolc ilueic cNcr
else OF judicial discretion within legal limits, and IN
error OF law. Gu conviction fOr mscneanOrs when aio
regarded under statutes OensVs OF the 49, urst
grade known the law, and arc traoc IL the lowest
courts, those courts might impose heavier SEN
fences than the highest criminal courts would nave
power to inict for the most aggravated elOnies NO
suc gruity should be Imputed to law. Tor me
49, .,i.,ior,