The People v. White.

preme court and each of the circuit judges, have power to preside in any court of oyer and terminer in this state, either for the whole or a part of the time for which such court shall continue. By $ 28, courts of oyer and terminer in the city of New York may be held at the time and place at which any circuit court may have been appointed to be held, by one or more of the justices of the supreme court, or of the circuit judges, or by the first judge of the court of common pleas of the city and county, together with the mayor, recorder and aldermen of that city, or with any two of them. So far the act of 1830. Then came the statute of April 11, 1834, which adds an associate judge to the city common pleas. This was before holden by the first judge, with the mayor, recorder and aldermen, or by the first judge, mayor, or recorder alone, or in conjunction with one or more of the others; 2 R. S. 142, 2d ed. § 22, 23, and by id. 145, § 42, the first judge, mayor, recorder and aldermen, or any three of them, of whom the first judge, &c. should be one, had power to hold the general sessions. By the first section of the act of 1834, Sess. Laws of that year, ch. 94, p. 118, which act is also incorporated into the 2 R. S. 144, 5, 2d ed. as sections 35 to 41 inclusive, the associate judge took the same power to hold the common pleas as the first judge before had, and might equally with him, authenticate the records of the court. By the 4th section, [§ 38, in 2 R. S.] he also took with the first judge exclusive chamber powers. Then, by the 5th section, $39, in 2 R. S. it is enacted as follows: "All the powers now vested in the said first judge by virtue of the statutes of this state relative to any legal proceedings are hereby given, also, to the said associate judge." It adds, that any proceeding commenced by one, may in his absence be continued &c. and perfected by the other. The 6th section, $ 40 in 2 R. S. confers upon him specifically the same powers as the first judge to preside in the courts of general sessions. By the 7th section, the statute was limited to five years, which by the subsequent statute of April 1, 1839, p. 96, of Sess. Laws of that year, was repealed, and provision made for still an additional associate judge. The former act of 1834, was expressly retained, except the limitation; and the new

The People v. White.

judge is by 2 invested with all the powers of the first judge. The object of the act of 1839, was first to render the act of 1834, perpetual. Then the act declares, in a separate section, that the additional judge, "shall possess all the powers now vested by law, in the said first judge of the said court," i. e. N. Y. common pleas.

Looking at the previous statutes, and taking the clauses conferring power on the associate judge, in the act of 1834, with their unrestricted import, there would seem to be no doubt that the associate judge took, among other powers, those of the first judge, in respect to the court of oyer and terminer. Such is the obvious sense of the clause which invests him with all the powers of the first judge by virtue of the statutes of this state relative to any legal proceedings. One of his statute powers was, to hold a court of oyer and terminer in conjunction with two aldermen. It would be singularly hypercritical to deny that this is a power relative to a legal proceeding. There is nothing in the words which, in their own import, confine them to sole statute powers in any legal proceeding, more than to a power exercisable in conjunction with others. The first judge had both. As a commissioner in certain cases, he might act alone, wherein it was seen to be useful that in case of his absence the proceeding should be continued and perfected before the associate; and so vice versa. The added clause, therefore, did well in providing for such a case; and may be satisfied by being applied accordingly, without giving it the further effect contended for, as a restriction upon the general clause conferring on him all the statute powers of the first judge, without discrimination. These general words were also in themselves sufficiently broad to make the associate a judge of the general sessions, and, I think, rendered the sixth section unnecessary. I admit that this section is evidence that the legislature understood the general words as being possibly of narrower import than I have supposed, which, for more abundant caution, added the sixth section. And, if the act of 1839 were a mere extension of the powers of the associate judge under the act of 1834, to Judge Inglis, we migh be left in such doubt of his power as to call for a pardon, if not for a reversal of these proceedings; and especially

The People v. White.

after learning, as we have, that practically, the act of 1834 has not been understood to confer the powers of a judge of the oyer and terminer on the associate then created. The act of 1839, however, beside retaining the act of 1834, goes on to declare in a separate section, (§ 2,) that another associate judge shall be appointed to possess all the powers vested by law in the first judge. No provisions for conferring specific powers occur in this latter statute. One of the powers spoken of as vested by law, was to hold with two aldermen, the court of oyer and terminer., That has been done in this instance, and we think rightfully.

It is equally clear, that over the court thus formed, Judge Edwards had a right to preside. By one of the sections already cited, it was made his general duty to preside at all the courts of oyer and terminer in his own circuit. By another, he had the same power in that or any other court of oyer and terminer, as a justice of the supreme court; and by another section, either of the circuit judges may preside for the whole or any part of the time during which any court of oyer and terminer continues.

Then, as to the point made by the prisoner's counsel, on the leaving of the bench by Judge Edwards, after the trial had progressed under his direction. It is true, that the business arrangements of the judges should be such as to secure a quorum for the whole trial; and we admit that judges of grade and number sufficient to constitute a legal tribunal, must begin and continue through with the trial. But that does not include supernumeraries. Any one judge of this court, who has heard the argument of a cause, may decide it, though the other judges were present when the argument began, and were called away before it closed. So should all three of the justices of this court, or three circuit judges, commence a criminal trial in the city of New-York, with two aldermen, together forming a court of oyer and terminer, and two of the justices in one case, or of the circuit judges in the other, might leave the bench in the course of the trial, without interrupting its progress; for a quorum would still remain, consisting of the same judges before whom the trial began. That is, in effect, the case at bar. Here judge Edwards and Judge Inglis, both and each, had

The People v. White.

the same powers in respect to the oyer and terminer of the city of New-York, as two justices of this court or two circuit judges would have under the direct provisions of section 28, sub. 1. 2 R. S. 132, 2d ed. Judge Edwards had the general power to associate with and preside over the whole; but Judge Inglis, with the two aldermen, constitued of themselves a court having the same powers as if Judge Edwards had been joined with them, and heard and passed upon the whole matter. With the abstract fitness of the abdication complained of, we have nothing to do on this writ of certiorari.

As this case is important in itself, and any doubt, not to say mere silence, on the merits of any point made, might call for its review on an application for pardon, or perhaps on writ of error upon a record of judgment, or motion for a new trial, we have preferred to examine the objection founded on Judge Edwards' leaving the bench, though we think it not properly before us on the bill of exceptions. To present it properly now, it should at least have been made a part of the general record; short of that, we are inclined to think, it can be treated as no more than matter of irregularity examinable on motion in the court below. A special entry of the facts on the judgment record, after sentence, would present a different question.

There is nothing in the objection to the question, which Timpson was allowed to answer. It was insisted that what was said or done, after White left, was inadmissable. The question related to what the witness saw. Suppose he had seen Fitzpatrick dead of the wound inflicted by the prisoner, can it be doubted but that he might have stated the fact?

With regard to Wright's supposed deposition before the coroner, we must not be understood as conceding on the authority of the cases in respect to memoranda under the statute of frauds, Merritt v. Clason, 12 Johns. R. 102; 14 id. 484, S. C. nom. Clason v. Bailey on Error, that depositions may be drawn up with a pencil. But there are several other difficulties. We do not mean to say that any of these lie in the legal effect of the writing, though it is impossible to see that it conflicted with what Wright had said. But it is no way authenticated; and though the law pre

The People v. White.

sumes that the coroner reduced the testimony of the witnesses to writing, as in duty bound by the statute, 2 R. S. 622, 2d ed. § 8, yet the same statute requires that the written testimony should be returned by him. Here he has furnished nothing which can be recognized as an official return. We have no jurat; nor any thing importing that the witness was sworn. The bill of exceptions says it purported to be the testimony of Wright; but sets it out with the inquisition, and all the marks of authenticity which it bore. It is headed witnesses; and there is nothing beside to import that it was written by the coroner, or under his direction; nor was it shown or offered to be shown that the pencil writing was in his hand. Neither he, nor Wright, nor any other person, was sworn to show that this statement of Wright's testimony was correct. We think the statute, in requiring the coroner to make a return of the testimony with the inquisition, cannot be satisfied short of some official certificate indicating that the witnesses named were sworn before him, to the matter insisted on as evidence. Testimony taken officially under this statute is, under circumstances, evidence against the prisoner; 1 Phil. Ev. 371, 7th Lond. Ed.; and it would be most revolting to say that the life of a man should in any degree depend on such a loose pencil sketch, as this appears to have been. At least, if there be no formal authentication, there should be proof aliunde, that the memorandum presents the testimony of the witness truly. To contradict the witness, in a case where no testimony has been properly reduced to writing, oral evidence may be given of what he did say. The alleged deposition was in a proceeding to which the prisoner was not a party. It stood on the ground of an affidavit made in a proceeding between third persons. In such case, to render it operative as impeaching testimony, the rule has been laid down, that you must do more than showing it purports on its face to have been sworn. Proof aliunde must be given, that it was the witness' statement. 1 Phil. Ev.

379, 7th Lond. Ed.

Next, as to the objection for variance between the indictment and proof. The first count is for murder at the common law. True, it interpolates the words of a particular