Opinion
December Term, 1851
J.R. Anderson, for the plaintiff in error.
R.H. Gardiner (district attorney,) for the people.
There are but two questions raised by the bill of exceptions in this case. The first is upon the admission in evidence of the certificate of conviction made by the justice and filed in the office of the clerk of the county of Onondaga; and the other is upon the rejection of the evidence offered on behalf of the prisoner to contradict the fact of a trial and conviction, as set forth in the record or certificate of conviction. I think that both questions were correctly decided by the supreme court, and that it is unnecessary for me, here, to repeat the reasons sustaining the judgment, which are so ably given by the learned judge who delivered the opinion of that court, for giving the judgment. (7 Barb. 462.)
The counsel for the prisoner, on the argument in this court, made a point which was not noticed, if made, in the supreme court; namely, that the indictment is insufficient, because it does not charge the facts necessary to show that the justice acquired jurisdiction over the person of the prisoner to try and convict him of the first offense of petit larceny. The point made in the court below was, that the certificate of conviction should show that the justice had jurisdiction, and that because it did not, it was inadmissible in evidence of the fact of conviction; and not that the indictment was bad because it did not allege the facts necessary to show such jurisdiction.
It is a general rule that the facts of the charge must be set forth in the indictment, that the defendant may clearly understand the charge he is called upon to answer. In this case, it being the object of the indictment to charge the prisoner with a second offense of petit larceny, it was essential to such charge, that the indictment should state facts to show that he had prior to the last offense, been convicted of the previous offense in due form of law. And as the conviction is alleged to have taken place before a court of special and limited jurisdiction, the indictment should have alleged such facts as would show that the justice, holding such court, had jurisdiction as well of the subject matter as of the person of the prisoner. (1 Chit. Cr. L. ed. 1819, 138; Cornell v. Barnes, 7 Hill, 35, and note.)
The indictment in this case, in order to show a conviction of the prisoner for the first offense, in due form, should have, preliminary to the statement of his trial and conviction, stated the charge made against him before the justice and in what form, the proceedings had before him upon it and the issuing of the process thereon, his arrest and being brought before the justice; showing thereby that there was a charge for petit larceny made in due form against him, and legal process issued for his arrest thereon; that he was arrested, brought before the justice and elected to be tried for the offense charged before the justice, pursuant to the provisions of the statute in such cases. Such allegations would have shown jurisdiction in the justice of the subject matter and of the person of the prisoner. Instead of them, the indictment alleges, in general terms only, that the court before which the prisoner was tried and convicted then and there had competent power and authority to try and convict him for such offense. But the objection now made to this indictment comes too late to avail the prisoner. The defect complained of is a matter of form merely. I do not see that it tended to prejudice him. And 2 Rev. Stat. 728, § 52, provides, that no indictment shall be deemed invalid, nor shall the trial, judgment or other proceedings thereon be affected, by reason (among other defects named) "of any other defect or imperfection "in matters of form, which shall not tend to the prejudice "of the defendant." The judgment should be affirmed.
Judgment affirmed.