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

JUDGE RAPALLOS OPINION.
The People ex rel. William NJ. Tweed, plain
t in error aga INST Joseph l.. Iisccmb defendant, IN
error: gspao 1.-The question submitted to lis in this
case Is OF more than ordinary Importance It's decision
will result merely in determining the extent Oh cue
pnshmcn OF The par teaar plisorr 10Y ~ nroccre IN
criminal cases which will most materially a"cl every u"
dIidal who may he hereafter cnufged win OH ~ VI
grade inferior 10 felony, or III rJ'ct9 inc Ir & LIZ
6y the prosecution not founded IN sonnd legal prli
ciples consistent with our - ,in of criminal Jpu
dencc For this occasion we nave pelinl.teu an un
usually extended discussion OF INC QUESTION d. oa
counse on both sides and it may be- asslime, from the
great research displayed IN their briefs that we nave pee
England and in several state, of the Union which IN
irjudsinent at least, could tnro" ii5ht upon eio o
THE MAIN QUESTION.
The main question now presented for decision Ia
whether several, separate aud distinct ohenss, each
amounting usiemeauOr. upon wbich an Indictment
could be framed. may De charged in ono Indictment In
earae counts and the prisoner pat on his trial for all
tho alleged ocuses at the same time before the sam
Jury and ia the jury render gcnili SIengt ol
guilty all the counts or verdict OF siy OF various
sprcnrd counts, whether the Court mas power % pro
nOunre "a separate n.cnce on each c0unF, upon Which
the prisoner il found guilty ana mus aSf sIle SEN
fences on "a sin lie indictment and trial. 10 an extent ar
in excess ol tho lnd nnln punishment Piss'iipVeu ~
statue for the grad OF ose Ior when tue p,,so,c
costs to every mind accustomed 10 reflect upon sch sio
J e,I' e . lii,n Of me rule which an affirmative
an,w,. to mi. anision world establish and di-sOses
now clecualy such rule of procedure VOID obli.arae
many OF tie most valuable safeguards which tnc
law mas thrown around tho trial Of persons accused al
The generally accepted and recognized principle il
that q nau shall bc tried for only one crime al uhe
and convicted only upon evidence VI the commission vl
that crime. aud upon proof oi Other crimes wAich
show hln be it subject for punishment n il were
proposed Court OF sessions OF oyer ana 4eIinief'
III which prisoner arrlSncl ior tIil upon ~ sep
lfr urnts Tor many 0ftnss. 10 try all the IN
dctmrnts at the same time, and before the same Jary
thc common sense OF every laynan. ms vel as every
lawyer, would revolt al The Proposition. Ana yet -
ella med that The result De accom- DI7leJ III
msdomeInof Dy uniting aIi Tine oliso' III tue
SAM Indictment. The evils the same IN 0Oth cases
Evidence OF each misdencanor wo,ld patHraiy irJuu,e
the Jury Tlst the prisoner IN determining upon Obc
aiilb az innocence to each OF The Others evidence
which would be legally mad issiee as 10 some Oh theh
would be necessarily alhutlNt Il competent, IS 10 SOM
others. The prisoner might him self DC obliged To miro
dnce evidence excnipate himself from some 90 the
charges which would pave bearing pi,Jhii,ai 10 hi
ers. Ihe result at which the law aims OF making eaeh
criminal charge depend upon ITS own merits, would pc
frustrated II e rule claimed by the prosecution issOund
IL il equally applicable as STAGED III the OPINION OF my
brother Aen j., to trials bsfofe inferior courts or mag
istratrs upon plants for petty Ofcnses over WHICH
they have jurisdiction to impose only short tern Oh
II Vast number OF such oTcnses can be united in one
Indictment and separately punsnrd they can VIII,
equal Ilopsty DC ,teo Ia Que i fht
OF Court ~ Special Sessions to whom te legislature had
assigned the power OF trying only sch ofenses
punishable by line inp ,onInent not exceeding one
year, could. upon single trial. sentence prisoner ior
tcn exceeding tuc possible duration " MS NE III Is
I'll ar that tie rule claimed is subject to very
serious objections. and has little, II anything 10
E hy SinS nSrety c by statutory restrictions II
the pubic prosecutor finds tina; several distinct M lic-
ncanurs have been committed and deserves the lnllc-
ton OF separate pulishncns for each he under
istng law, obtain separate Indictments ana tri G4ci
upon its own merits. The prisoner wb then DO enlbid
to avail himself OF his right Of challenging Jurors on the
trial in tmen, aud the eylencOf the prosecu-
lion and OF the defense viii he confined to the matter
clncd i'm that Indictment, AMI the punishment proper
pofoncd within gal limits To the gravity VI the oense
II has long been the practice in all kinds
Of criminal cases, To insert in the indictment
several counts describing the oiisDee in various modes
80 az the evidence tho trial, thus presenting
the appearance of changing the various ofenst but IN
fact relating to only one But II under an Indictment
containing counts, the proofs should disclose
otscs in fact distinct which might have been the sub
ec OF separate indictments, the Court can compel the
hubble osecuor either during the OF the trial
at its close, to elect upon which connt he claimed
conviction. But the rule claimed that the
prisoner be tried at the time In this ease,
over different charges, and III case OF conviction pun
ished separately on EACH should not III my Judgment DC
adopted unless 1t can he shown To have been established
b authority to wich the court on the principle OF stare
decis ought to yield its own convictions OF right In
searching for authority for such course or procedure
naturally turn in the Ist instance To tho siatdtes OF
cur own state AFTER dllsent search we ma mere
nothing adapted TO tho enforcement of such prae
or recognizing ia existence Ga tile contrary. all the
provisions 10 relation 10 indictments tr'ls, ahd phS
lnent for crimes and msIemelnoTs seem u contemplate
bat Il single conviction and sentence every Indictment
We next tn to the report OF the adndicated case IN our
own courts from the organization OF the Judiciary of
dusriois researches OF counsel, and
referred 10, do ind single reported case in which
cumulative sentences ilsc ID Ell III CONVICTION
of several onclscS under one Indictment norm wl'
tie power to inhct such sentences has been odudgrd
The dcta this subject found IN OF the reported
opinions explained in the opinion or my associate
Allen. j. We then appeal 10 the experience OF the ncm
beers OF orr own court several or whom have presided
for great number OF years over courts OF criminal
jurisdiction In thus state and some exercised the office Of
public pTu seeOr. None OF Them speaking either from
experience Tradition cite "A ease In which such "A
power has been exercised sanctioned in this state 1t
being established, that there Il authority In this
State lhc course now attempted 10 be- sustained
although Occasluns for such course must nave ne
qucnty occurred, and that We called upon "a intro
dce new doctrine into our Jurisprudence contrary 10
our previous Practice, and a. think, the majority II
AL OF my brethren VIII concur with me I'm saying,
contrary 10 oar IDEAS OF order aud justice III tho nis
trlliOn OF criminal law.
Statutes OF the United States and Of OF sister
States, aud OF ngElnd nave been referred 10, wic, III
certain cases. aud under restrictions allowed the jonlrr
OF scra criminal charges In Indictment but these
statutes rather dsproyo than prove the right ut
Law to PURSUE that Else, why the necessity OF
enacting themi Now what Is tie authority upon which
pacticc II f. IN be- found only In the opinions OF judges
OF cOurts In England Of date later than that up
which, by our Constitution, we adopted the COM
law OF England, and unless In single very
recent ease, In which the question wa, not raised or dis
cussed, any reason .iysn-thc rIcaboIne casc-no
practical application OF the rule appears
the cited to nave been made cHmul ing
separate counts 10 extent greater the nrprcpat,
than could have been inflicted upon citlor Of ic
alone. Upon the strength OF thesa opinions elementary
writer's have stated 1t 10 be the law that various misde
mctnOrs he joined IN Indictment under several
and tried ~ the time and separate cOhye-
lions had, although 10 Is conceded that where
the oIense amounts To felony there be- hut
conviction and sentence under one indictment.
Tho statement has been repeated American
aud III other but the5e few and those