The People ex rel. Booth agt. Fisher.

Neither his power or duty to try is made to depend upon the defendant's request to be tried, his omission to give bail, or any other condition.

That the power of courts of special sessions, in the cases provided for in the Revised Statutes, is thus limited and dependent, and in the act under consideration, acts, which, before its passage, were innocent in the eye of the law, are made misdemeanors, their punishment defined, these tribunals erected and provided expressly for their trial and punishment, with directions concerning their manner of proceeding, and no mention made of any such condition or restriction of their powers, is strong evidence to my mind that none such were intended to be imposed. Instead of the conditions provided in the Revised Statutes, these courts, in cases arising under this act, are directed to proceed at once to the trial of the persons charged with violations of its provisions.

It is contended, however, in behalf of the appellant, that if the intention of the act was to compel the person arrested by virtue of process issued by a magistrate, to be tried before a court of special sessions, without the right on his part to be released from custody upon giving bail to appear at the scssions, the act is so far in contravention of § 2 of Art. 1 of the constitution, which declares that, "The trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever."

I entertain no doubt, that by the words "trial by jury," as there mentioned, was intended a common-law jury, which consists of twelve men. But I am satisfied it was not intended to apply to a case like the present.

Section 6 of the same article, provides that "no person shall be held to answer for a capital or otherwise infamous crime, (except in cases of impeachment, and in cases of militia when in actual service, and the land and naval forces in time of war, or which the state may keep, with the consent of congress, in time of peace; and in cases of petit larceny under the regulation of the legislature,) unless on presentment or indictment of a grand jury," &c.

The People ex rel. Booth agt. Fisher.

The framers of the constitution have here declared that persons charged with capital or otherwise infamous crimes, shall not, with certain exceptions, be held to answer therefor, except by indictment or presentment of a grand jury; clearly, as it seems to me, leaving all other cases under the regulation of the legislature.

Persons charged with crimes not capital or otherwise infamous, may, therefore, be held to answer without being first indicted or presented by a grand jury, as the legislature shall provide.

But it is said, that in whatever court the person charged may be tried, and whether with or without being first presented by a grand jury, he is, in any event, entitled to have his guilt or innocence determined by a jury of twelve men.

The several written constitutions of this state-those of 1777, of 1821, and of 1846-contain substantially the same provisions as those above referred to.

By S4 of the act declaring the powers and duties of justices of the peace, passed April 13th, 1813, (2 R. L. 507,) petit larceny, misdemeanor, breach of the peace, or other criminal offence under the degree of grand larceny, was triable by a court of special sessions, and that without any jury whatever. This continued until 1824, when the legislature so far modified it, as to give the party accused the right to be tried by a jury of six men. (Laws of 1824, ch. 238, § 47.)

By the Revised Statutes, the cases triable by courts of special sessions are mentioned, and are contained in eight specifications, all being below the degree of grand larceny, and none of them being what would be denominated infamous, in the sense of the constitution, except petit larceny. (2 R. S. 711, § 1.)

The section of the constitution, which, it is claimed, secures to the appellant a trial by a jury of twelve men, uses the expression, "the trial by jury." This refers as well to all other incidents of the trial as to the number of men necessary to constitute the jury. It means, as I think, such a trial as is contemplated by § 6, for persons charged with capital or otherwise infamous offences, which must be upon presentment or indict

The People ex rel. Booth agt. Fisher.

ment of a grand jury, and in a court of record with commonlaw jurisdiction.

I think this is apparent from several considerations :—

1. A common-law jury trial can only be had in a court of common-law jurisdiction, both as regards the character of the court and its mode of procedure. It is not true, that simply making the jury to consist of twelve men, constitutes a common-law jury trial.

2. Section 6 excepts from its operation petit larceny, which at common law was felony, and was infamous in its character. The statute of 1813, and the Revised Statutes referred to, expressly authorized courts of special sessions to try for that offence, which was never held to be in contravention of the constitution. (Murphy agt. The People, 2 Cow. R. 815; The People agt. Goodwin, 5 Wend. R. 251.)

3. The 2d and 6th sections referred to, are parts of the same article of the constitution, and are in pari materia; the latter, securing to all persons charged with infamous crimes, excepting as aforesaid, a trial, after due presentment or indictment by a grand jury, leaving the trial of all cases of misdemeanor on the footing of petit larceny, to be provided for by the legislature by a jury of six, twelve, or any other number, or without a jury.

4. No jury trial in criminal cases was ever known to the common law, but such as followed upon indictment in a common-law court, after the accused was in custody, had been arraigned and had pleaded to the indictment.

5. This construction makes the two sections harmonious and sensible. The legislature may declare criminal, acts which before were innocent, as in case of the statute under consideration. How can it be said, that in such cases a jury trial has been "heretofore used?" Section two is expressly limited to cases in which the trial by jury has been heretofore used. In cases of acts made criminal by a statute passed after the adoption of the constitution, no trial either with or without a jury has been used. But if an act is made a felony by statute, and thereby becomes infamous in its character, as in the cases of

The People ex rel. Booth agt. Fisher.

the statutes to prevent abduction of females for purposes of prostitution, and to prevent seduction, section six secures to the persons charged with its violation a trial by jury, after due presentment by a grand jury.

6. Section two only requires a trial by jury in cases where it has been heretofore used. This cannot mean cases where it might or might not be required, for then no misdemeanor could be tried by the special sessions, as every person charged with any crime was liable to be indicted therefor by the grand jury, and then a trial by jury was the only one which could follow. The only practicable interpretation is to exclude from its operation those cases where it was competent to try by a court of special sessions, and where such trials had been in use. By the revised laws of 1813, before cited, all offences under the degree of grand larceny might be tried in those courts, and that law continued in force until 1830, when the Revised Statutes limited the jurisdiction of courts of special sessions to certain specified cases.

The constitution has been twice revised since 1813, and the provisions on the subject have been continued substantially the same as they were before 1813. It would be singular, not to say absurd, if the organic law is to vary in its principles, and the objects to which it relates, at every or any change of legislation. It should be interpreted, in this respect, in the same way as if there had been no revision since 1777. The fact that the same thing has been twice asserted since that time, in the same solemn manner, certainly ought not to change the interpretation justly applicable to it originally, but on the contrary should confirm such interpretation.

For the foregoing reasons, I am of the opinion that the decision of the county judge was correct, and should be affirmed. SELDEN and JOHNSON, Justices, concurred.

Badger agt. Wagstaff.

SUPREME COURT.

LUTHER W. BADGER agt. JOHN C. Wagstaff.

Where an application for an injunction is made upon the complaint under the first clause of § 219 of the Code, and an affidavit in corroboration of the complaint is used, which states more than the complaint, it does not lessen the efficacy of the facts stated in the complaint, or transfer the application made upon the complaint to an application made upon affidavit.

New-York Special Term, Nov., 1854.

MOTION for injunction upon complaint and affidavit.

for motion.
opposed.

MORRIS, Justice. The complaint avers sufficient consideration for defendant's promise to give to plaintiff his note for $5,391.50, to be endorsed by J. H. Richards; and in case Richards would not endorse it, then defendant to assign to plaintiff, as collateral security for the payment of the note, defendant's interest in $10,000 capital stock in a certain manufacturing company.

Also avers Richards' refusal to endorse the note, and defendant's refusal to assign the interest in the capital stock.

Plaintiff, in his complaint, asks an injunction to prevent defendant selling or disposing of his said interest, and demands judgment that he assign to plaintiff his said interest in accordance with his agreement. The plaintiff swears to his complaint, and also makes a separate affidavit, in which he states the same facts contained in his complaint, with the additional fact that the defendant has threatened to sell his interest in said manufacturing company.

This application for an injunction is upon the complaint; and the affidavit is only in corroboration of the complaint.

That the affidavit states more than the complaint, does not