Philip Dow V. NEW-YORK, at the trial, and the verdict fhews the jury's opinion. Dow May 1803. had gone to North Carolina on the very voyage insured in a veffel larger than this with only three hands including himfelf; this was only a pettiauger. As to the policy's being at and from, it is a miftake, the words are from New-York, but granted they were otherwise, Coney Island is part of the port of New-York. P. N. Smith. Hoffman in reply infifted on the words at and from; that under them the vessel should be fit for fea when she first weighs anchor in profecution of her voyage; that was done at her leaving the pier in New-York and had fhe been loft going to Coney Island it would have been within the policy. The jury's decifion on the fufficiency of a crew is not conclufive. Suppose they had determined one hand only to be enough, the court would have fet afide the verdict. If the captain was in New-York, the communication between him and the plaintiff muft be inferred. For this, Stewart against Dunlop in the Houfe of Lords, Park 209, is an authority. Per curiam. This is a claim for a total lofs after having exhibited the ufual proofs, and on these an adjustment was made. It is upon this that the action is brought, to which feveral grounds of defence are taken: Firft, that the adjustment was fraudulent; fecondly, that the veffel had not any ballast on board when the failed from the place at which the policy attached, and therefore was not fufficiently equipped; thirdly, that she had not a fufficient crew. We shall lay wholly out of view the two first grounds: it appears that previous to the adjustment all the facts now relied on were communicated to the underwriters. The proteft ftates, the time of failing from Coney Island in ballaft, the gale of wind, &c. All these circumftances and their dates appear from the proteft to have been fully made known, and therefore all charge of fraud is at an end, because the adjustment was made by the underwriters with their eyes open. An adjustment cannot be opened except on the ground either of fraud or mistake from facts not known. On the third point we think there is fufficient reafon to order a new trial. It now appears that the veffel was a fchooner of thirty-five or forty tons burthen, with three fails, and departed on a voyage from hence to Edenton in North Carolina with only two hands, the captain included. The veffel was therefore in our opinion not 37 equipped for the voyage, and on this ground we think there NEW-YORK, ought to be a new trial: one hand and the captain were not a fufficient crew. The People against Thomas Youngs. May 185. The People The firft fec tion of the act regulating ings in criminal cafes" does not extend to collateral iffues. on fuch, if the prifoner ftand mute, the court will enter a plea On collateral iffues General Sef rifdiction on indictments for a THE defendant had been convicted of grand larceny, before the court of General Seffions, at Albany in February laft, and was brought up to receive fentence of imprisonment for life certain proceedunder the act of 21ft March 1801, c. 58, f. 4, as being his fecond offence. The indictment on which he was now convicted did not fet forth the record of the former conviction: but instead of it a suggestion, in the nature of a counterplea, had been entered against the prisoner in the following words: “ And Ambrofe Spencer, who profecutes for the people of the for him. "State of New-York in this behalf, having heard Thomas no peremptory "Youngs who ftands convicted at a Court of General Sef- challenge. "fions of the Peace holden at Albany in and for the County fions has no ju"of Albany on the seventeenth day of February laft paft, of feloniously and with force and arms ftealing, taking and fecond offence "conveying away at the city of Albany in the county of Al- in committing grand larceny. ❝bany on the fixteenth day of February last past, one cotton, Indictments for fecond offences, « &c. (fpecifying the articles and their value) of the goods and where the pun"chattels of Edward Grifwold, being asked by the court now ifhment is inhere what he had to fay for himself why judgment fhould fet forth the re"not be paffed against him agreeable to law, faith that the cord of the for"faid Thomas Youngs ought to receive the fentence and Prifoner tried "judgment of the court now here to be imprisoned in the at G. Seffions State Prifon for life, and there to be kept at hard labour, “ because he says that the faid Thomas Youngs, by the name “ of Thomas Young heretofore, and before the faid felony was committed in manner and form aforefaid, to wit, at "Supreme Court of Judicature, held at the City Hall of Al“bany, in and for the State of New-York, on Saturday, the "twenty-eighth day of April, in the year of our Lord 1798, "before John Lanfing, Efq. Chief Juftice of the faid Supreme “ Court of Judicature, Morgan Lewis, Eghbert Benfon, and James Kent, Efquires, puifne Juftices of the faid Supreme "Court of Judicature, was convicted on his plea of guilty to "an indictment for grand larceny, of the goods and chattels ،، 66 a creafed, muft mer conviction. for grand larceny and brought geftion of its up here, on tugbeing fecond of fence, this court will give no other judgment below might than the court have pronoun ced. NEW-YORK, The People V. "of one John Wright, and thereupon it was considered and "adjudged by the faid court last mentioned, that the faid "Thomas Young be confined in the State Prifon in the city "and county of New-York, at hard labour for two years, Thos. Youngs and this, he the faid Ambrose Spencer, is ready to verify " and prove by the record thereof; and the faid Ambrofe "Spencer further faith, that he the faid Thomas Youngs, "who now ftands convicted at the faid Court of General "Seffions of the peace, holden at Albany, in and for the "county of Albany aforesaid, in manner and form aforesaid, "is the fame perfon who was fo convicted at the said Supreme "Court of Judicature, holden at the City Hall of Albany, in "and for the State of New-York, in manner and form afore"faid, and is not any other or different perfon. Wherefore, "fince the faid Thomas Young hath already been duly con"victed of the crime of grand larceny, committed since the "faid firft conviction, the faid Ambrofe Spencer for the peo"s ple of the State of New-York, prays the judgment of the "court here, that the faid Thomas Youngs may receive "judgment to be imprifoned in the State-Prison in the city. "of New-York, at hard labour, or in folitude, or both, for "life." Spencer, Attorney General, prayed that the prisoner might be put to plead his identity, and, in case of his denying that he was the fame person, that a jury might be fummoned inftanter, to try the fact. This he contended was the right mode of proceeding, and for that he cited the King v. Scott & or. 1 Leach 445. Court. Thomas Youngs, you hear what is alleged against you. Do you wish to have counsel? Prifoner. If you please, Sir. Hoffman and Colden being affigned him, requested a little time to prepare themfelves: the question being new it was granted. On the prifoner's being brought up the next day, by advice of his counsel he stood mute. They infifting that as the punishment of peine forte was exprefsly abolished, and the firft fection of the law of 21ft March, 1801, ch. 60, applied only to cases of arraignment, the prefent was a cafus omiffus in which the court had no power. After fome confultation on the bench, the court ordered the following plea to be entered: 39 "That he is not the perfon alleged by the Attorney Gen- NEW-YORK, "eral in his plea to have been formerly convicted of grand " larceny," Referving to the prisoner a right to object to the mode of proceeding and take advantage of any irregularity that might appear. His counsel then ftated they meant to contend that the proceedings not fetting forth the record of the former conviction were erroneous, and the court would not pronounce the judgment prayed for. I Spencer, Attorney General. The identity of perfon and former conviction are circumftances collateral to the offence itself: they do not conftitute a part of the crime, and therefore may be pleaded and replied to ore tenus, and a venire awarded returnable inftanter, in the nature of an inquest of office. This is the conftant practice in cafes where it is doubtful whether a criminal be a lunatic or not; fo, by analogy, the fame mode fhould now be adopted, efpecially as it is a matter in which the court may exercise its difcretion. 1 Hawk. 4. b. 1. c. 1. f. 4. n. (5.) Foft 50, 51. In Great-Britain, when a prisoner is to be oufted of his clergy, the fuggeftion of his former offence is by way of counterplea, and the indictment never takes notice of the previous conviction. 4 Hawk. 254. b. 2. c. 33. f. 19. n. The only mode of trying whether he has before had his clergy is by the certificate prescribed under the 3 and 4 W. and M. c. 9. f. 7. The King v. Scott & or. 1 Leach, 445. If the fection cited from the ftatute of W. and M. be compared with the 2d fection of our State Law of 14th of April, 1801, ch. 146. 1 Rev. Laws N. Y. 462, 3. the certificate ordered by our provifions will be found perfectly analagous to that required by the 3 and 4 W. and M. The first offence is grand larceny, punished in a certain manner: the fecond offence is the fame, with a greater punishment. In England the fecond conviction is not availed of in the indictment, but when the prifoner claims the benefit of his clergy, it is counterpleaded. This makes a perfect analogy. His identity may be tried by a jury of his country, with the aid of counfel and the right to challenge, at which time he may controvert his former conviction and indictment. Therefore, on principle, it is not neceffary to connect the first with the fecond offence, as the repetition is no part of the crime, but collateral and only incidental to his guilt. All May 1803. The People V. Thos. Youngs. May 1803. NEW-YORK, facts that do not enter into the crime, but are mere circumstances, are to be inquired of in this way. The books of precedent are filent as to the practice infifted on, and that is an argument for the present mode: the form of the counterplea is warranted by Dogharty. The People V. Thos. Youngs, Colden for the prifoner. There is no analogy between the present cafe and those which have been cited. It is not denied that to ouft of clergy the mode is by counterplea. The prefent fuggeftion cannot be spoken of as being of the nature of counterpleas; these are so called because counter to what is pleaded, or claimed by the prisoner after his conviction, when he demands the benefit of his clergy. To the plea which the prifoner has put in, to do away the force of the fentence, the Attorney General interpofes his counterplea; but he cannot, after trial, fuggeft any new matter. If the crime was as is ftated in the counterplea, or fuggeftion, the court below had no jurisdiction of the offence. Juftices of the Seffions are oufted of that both by the common law and exprefs words of our State act of the 21st March 1801, fec. 1. Rev. Laws N. Y. vol. 1. 302. That ftatute, after giving the juftices a right to inquire of all offences, &c. and going on to confer on them a right to hear offences of grand larceny, has the following provifo: "Provided always, "that it fhall not be lawful for any of the faid courts to hear "and determine any indictment of, or for any treafon, mif prifion of treason, murder or other felony or crime, which "is or fhall be punishable with death, or with imprisonment "in the State-Prifon for life, but fhall caufe the indictments for the fame to be delivered to the next Supreme Court, " or court of oyer and terminer or gaol delivery, to be held "in fuch city or county, there to be determined according to "law." The question then is, is this a crime punishable with imprisonment for life or not? Is not this apparent on the record? If fo, it is conclufive as to the jurifdiction. The court will recollect that the law referred to was passed with a direct view of restraining the justices in feffions from exercising any authority where the punishment was fo fevere. The Legislature viewed them as a fubordinate tribunal and therefore delegated inferior powers according to the confidence entertained. The practice on the prefent occafion is not fuch as has been formerly used: the mode heretofore adopted has been to make the firft offence a |