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The Pamphlet Collection of Sir Robert Stout: Volume 43

Tweed's Case: Cumulative Sentences

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Tweed's Case.

Cumulative Sentences.

G. I. Jones and Company. St. Louis

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A Brace of Noted Cases; Namely, Stokes's Case and Tweed's Case.

I. Introduction. II. Stokes's Case. III. Tweed's Case.

I. Introduction.—Among cases which have agitated both the professional and general public during recent years, there are few more prominent than the two named at the head of this article, both decided by the New York Court of Appeals. I do not propose to enter into any popular views of either,—the history of each, I presume, is familiar to every reader,—consequently I shall limit myself to some consideration of the more prominent questions of law involved in each.

II Stokes's Case.—This case was decided in 1873.1 There were several questions in it, but the prominent one, of which alone I am to speak, is the following:

The indictment against Stokes was for murder. A statute divided murder into degrees, and the jury found him guilty of murder in the first degree; "perpetrated," as the statute expresses it, "from a premeditated design to effect the death of the person killed, or of any human being." Some confusion of ideas seems to have prevailed at the trial; but the judge gave an instruction to the jury which was interpreted as equivalent to telling them, that, from the mere fact of killing, which was substantially admitted, the jury should infer the "premeditated design to effect the death," and return a verdict of guilty in the first degree; unless the defendant, by his proofs, satisfied them to the contrary. The Court of Appeals held that this instruction was wrong.

Plainly the instruction was a mere blunder, such as will sometimes occur on a trial presided over by the most careful of judges. It arose from an accidental failure to distin- page 4 guish the question before the jury, under the statute, from the familiar one at common law, where, by perhaps the majority of judges, it is held that, from a mere killing, or a mere intentional killing, the malice which constitutes murder is, prima facie, to be inferred. But where a statute, as in New York and some other of our states, goes further, and divides murder into two degrees, no court ever held that murder in the first degree is to be inferred from the killing alone; the utmost stretch of the presumption having been that it is murder in the second degree. This question could never arise in England, because murder in the first degree is there unknown; but in several of our states it has been agitated, the decisions are all one way, and there is no doubt upon it.2 The notable thing about this case, as a mere legal one, is, that many people, even among lawyers, thought, at the time, that the court had in some way been induced to bend the law in the interest of the crime of murder.

III. Tweed's Case.—As many hard things, now happily passed away, were at first said about the decision in Tweed's case, it would be gratifying could we find that it also accords with the general law, as administered in England and our other states. But it does not. Unquestionably it is law in New York, for it is the decision of the court of last resort. Nor do I even suggest that the tribunal erred therein. In other localities, where the common law prevails, to accept it would be to overturn what is fundamental and established in authority, and in principle is essential to the just administration of the criminal law.

This case is entitled People ex rel. William M. Tweed v. Liscomb; the latter being the warden of the prison in which Tweed was confined, and the proceeding being habeas corpus. It was decided in 1875.3 The facts were as follows:

A statute provided, that, "when any duty is or shall be enjoined by law upon any public officer, or upon any person holding any public trust or employment, every wilful neglect page 5 to perform such duty "should be a misdemeanor, punishable by imprisonment not more than a year, and a fine not exceeding two hundred and fifty dollars. Tweed had been indicted for two hundred and twenty distinct and several neglects under this statute, in one indictment, in as many separate counts, and had been found guilty on two hundred and four of the counts. Upon twelve of the counts the court had sentenced him to twelve successive terms of imprisonment of one year each, together with fines of two hundred and fifty dollars on each, and, on other counts, to additional fines, amounting in all to twelve thousand five hundred dollars. After the expiration of one year's imprisonment, and the payment of one fine of two hundred and fifty dollars, this writ of habeas corpus was brought, on the idea that the sentence upon one count exhausted the jurisdiction of the court, and the sentences on the other counts were void. It was denied, on the part of the People, that habeas corpus was the proper remedy, which, it was said, should have been a writ of error. That question I do not propose to discuss, but the other. The court held that the entire judgment subsequent to that on the first count was void, and the prisoner was entitled to his discharge.

The ground of the decision on this main issue was, that neither in felony nor in misdemeanor is it competent for a court to try a man for two or more separate offences, charged in one indictment, though in separate counts, and inflict on him a punishment greater than the law would permit on one of the counts. The only course to this end, even in the minor misdemeanors, is, it was held, for a separate indictment to be found for each offence, to be followed by a separate trial thereon.

And this course, it was deemed, is invariably essential for the protection of defendants. "The practice," said the learned judge, "of putting a man on trial for distinct offences at the same time is fraught with danger to the accused, and can never be done except at great risk of doing injustice. The law is tender of the rights of those accused of crime, to the extent of securing to them, by every means, a fair and page 6 impartial trial by a jury of the country, and protecting them against a conviction under the forms of law, but without an observance of, and adherence to, all the forms and rules of law calculated to protect the innocent.4 Now, in this case, Tweed was, in law, innocent, and should be deemed so also in morals, until proved guilty. The humane course, therefore, was to find against him two hundred and twenty separate indictments, and permit him to fee counsel, and pay witnesses, and overcome the People's evidence against him two hundred and twenty times. How long a period must be occupied in doing this it is impossible to calculate with certainty, but a very low estimate would be ten years of continuous defence. Meanwhile an extra court-house must be built, and an extra judge commissioned. But this burden would be for the People; Tweed would have burden enough to bear of his own.

Contrary to this view, the general doctrine prevailing elsewhere is, that the justice of the law forbids the harassing of defendants with multitudes of suits, whether criminal or civil, where the matter can be properly condensed into one. Such a course, even as to civil claims justly due, will in some circumstances subject him who pursues it to indictment at the common law.5 There are limits within which causes of action may be divided and prosecuted in different suits, and limits beyond which the party will not be permitted to go in that direction. Some civil claims are so diverse in their nature that they can be enforced only in separate suits.

The forms of the criminal law differ from those of the civil department; yet, in the criminal, the general truth just stated prevails the same as in the civil, though with perhaps less protection against multitudes of prosecutions. If a grand jury should find many indictments for petty offences growing out of one series of facts, where the whole could be more conveniently embraced in separate counts of one indictment, doubtless it would be competent for the court to order the whole to be tried together. And it may be that the court page 7 might even be justified in refusing to try one of the indictments, or in quashing all, should the prosecuting power decline condensing the whole into one. This would furnish to the defendant a sort of protection against an interminable harassment. Or, on the other hand, should the prosecuting power in the first instance manifest its wish to try two distinct offences together by charging both in one indictment, in separate counts, then, should the defendant object to this, and the court be satisfied that it would work injustice to him, it could order separate trials on the separate counts;6 or it could quash a part of the counts7 or, after the case was opened to the jury, it could require the prosecuting officer to elect on what count, or for what criminal transaction, he would proceed.8. In cases of felony the practice prevailing in most localities is, as a matter of course, to confine the prosecutor to evidence of a single criminal transaction, if the prisoner so requests; but in misdemeanors the court will exercise this power or not, according to the circumstances and demands of justice in the particular instance;9 yet neither in felony nor in misdemeanor is there any inexorable rule of law forbidding the joining of counts for separate felonies, or for separate misdemeanors, or for misdemeanor and felony, in one indictment. Each count is, in effect and in form, a distinct indictment; and an indictment in a half-dozen counts, and a half-dozen indictments in one count each, differ in little, if anything, except in this, that to the former there is only one caption, with one endorsement by the foreman of the grand jury, while to the latter there are six captions (if the indictments are certified to a higher court), with six endorsements. In neither case is the existence of one count or indictment pleadable in bar or in abatement of another.10 The consequence of which is, that, alike in felony and misdemeanor, in cases in which an election would be enforced if page 8 asked, and those in which it would not, if the jury convicts the prisoner for more offences than one, charged in separate counts, the finding and the record are nevertheless good on a motion in arrest of judgment or on a writ of error;11 a fortiori, therefore, good on a proceeding by habeas corpus.

Whatever may be said of felony, there is no proposition better established as general doctrine, or less embarrassed by dissenting views, than that, under proper circumstances, separate and disconnected misdemeanors may be charged in distinct counts in one indictment, and the defendant be convicted for the whole. The authorities to this proposition could be multiplied almost without end, and nothing could be found against it.12 And this doctrine appears to prevail as well in New York13 as elsewhere. I do not understand the court, in Tweed's case, distinctly to deny this proposition, which they say is sustained by "a show of authority."14 But what they maintain, and what this case establishes as the law of New York, is, that, though there be such a conviction, no heavier judgment can be passed on the whole indictment than the law permits on one of the counts; and, if the court imposes the full legal penalty on one of the counts, any judgment it pronounces on the rest is void. This, I admit, is New York law; but it was never law anywhere else, and let us hope that it may not be hereafter. How could it be law elsewhere? Why, in any civilized community, should a court spend its time, merely to spread scandal, in convicting a man of an offence, if it had no power to punish him therefor? The end of the proof of crime, and the verdict of page 9 guilty, in a court, is, in other localities, punishment; and the proposition that the tribunal will proceed to the verdict involves, in other localities, the further proposition that it will take the final step to the sentence.

The court, in this case of Tweed, seems, by implication, to admit that, if there is a discretion as to the punishment, and it is divided among the different counts which charge distinct offences, the judgment is good, provided the sum of all does not exceed what would be permissible on one.

It is difficult to find a reason for this distinction. A man, having been convicted for three disconnected misdemeanors, stands before the tribunal to receive sentence. The judge pronounces what he deems just for misdemeanor number one. But he had the power, by violating the rules of judicial discretion, to make the punishment heavier. Coming next to misdemeanor number two, he addresses the prisoner thus: "Had I, when sentencing you for misdemeanor number one, shown myself unworthy to sit on this bench by improperly inflicting on you the highest penalty which the law allowed for what is charged against you, I should have no jurisdiction to punish you for this separate offence of yours. But as I inflicted only half the punishment which you incurred when committing misdemeanor number one, I now impose on you the other half for misdemeanor number two. As to misdemeanor number three, you cannot be punished for it, because you have been punished for numbers one and two. It is the rule, in circumstances such as attend this case, that a prisoner is to escape punishment for a third offence if he has already had imposed on him half the measure of the law for each of two preceding offences." Now, it is believed that, since the plea of autrefois attaint ceased to be known in the law, no case other than this of Tweed's has appeared in our books wherein there is even an intimation that, in any circumstances, the right of a court to punish a convicted person for an offence depends upon whether or not a sentence, and what sentence, has been pronounced against him for another and independent offence. In Wilkes's case, the judges, in advising the House of Lords, said: "The balance is to be held with page 10 a steady, even hand; and the crime and the punishment are to counterpoise each other; and a judgment given, or to be given, against the same person, for a distinct offence, is not to be thrown into either scale, to add an atom to either15

Speaking of the English law, the court observed: "It is quite evident that there would probably be no precedents of cumulative punishments, each to the full measure allowed by law, as they were imposed in the case before us. The reason is obvious. In England the punishment for misdemeanors is, as a general rule, discretionary with the court. As the court could, in all cases, upon a conviction of one or more misdemeanors, pass such judgment, and impose such punishment, as it should deem proper and apportioned to the crime or crimes charged, cumulative sentences, each fully exhausting the statutory power of the court in respect to a single offence, could not be imposed, as there is no such limit, and cases in England within this rule and form of punishment would give no color or support to the present judgment."16 In fact, however, there are reported English cases exactly within Tweed's case, as explained by this distinction; and the English judges took of them directly the opposite view to that taken of Tweed's case by the New York court. Thus it was provided by the statute of 2 Will. 4, c. 34, § 7, that, "if any person shall tender, utter, or put off any false or counterfeit coin, resembling," etc., "every such offender shall," etc., "be guilty of a misdemeanor," etc., "and, being convicted thereof, shall be imprisoned for any term not exceeding one year." Thereupon a man was indicted, in two separate counts of one indictment, for two several utterings, to different persons, on one day. Being convicted, the judge sentenced him, not as Tweed was sentenced, on each count, but to one consolidated imprisonment for two years. Was this right? "This case,"' says the report, "was considered in Easter term, 1834, by all the judges (except Park, J., and Patteson, J.), and they were unanimously of opinion that the sentence was incorrect, and that there should have been consecutive judgments of one year's page 11 imprisonment each17—a direction which, it is perceived, the trial judge precisely followed in sentencing Tweed.

This case appears not to have been before the Court of' Appeals. Neither was the following: A statute provided, for a misdemeanor in office, the forfeiture of an exact sum of money in part punishment. An information charged several offences, in separate counts, exactly as in Tweed's case; and, upon conviction, the judge sentenced the prisoner, as Tweed was sentenced, to pay the whole forfeiture on each count. And the Court of Queen's Bench in banc and the Court of Exchequer Chamber both held this to be right.18

But there was before the Court of Appeals an English case, stated by the learned judge who delivered the principal opinion, and reasoned upon, as follows: "What is popularly known as the Tichborne case is claimed to be a direct authority for the conviction and sentences in the case at bar. The prisoner was convicted, upon a trial before Lord Chief' Justice Cockburn and his associates, of two distinct acts of periury, upon separate counts in an indictment, and sentenced upon each to transportation for the term of seven years, as for disconnected offences, and it is said that the time named is the extreme limit of punishment upon a single conviction for the crime charged. But, if it be so, then there was a conviction for two offences, which in this state would be felonies, on the same trial, which is not permissible with us. The decision cannot be regarded as authoritative evidence of the law with us. It is enough to say that no question appears to have been made to the judgment; and whether it is as authorized by some statute, we do not know. Be that as it may, the judgment has not received the deliberate sanction of any court in banc, and has not ripened into a precedent, even in England. It is, at most, but evidence of what the common law is, as now administered in that country, but page 12 no evidence as to what it was on the 19th of April, 1775."19 As to any English statute regulating this question, plainly, if there were one, it would have been discovered by the diligent-counsel for Tweed. And, in this English case, every imaginable objection was taken by the defendant; and, if this one was not taken, the reason must have been that the question was too well settled to admit of argument. I cannot imagine how any legal person can so read the English cases as to doubt that the law was thus, and thus settled, in England, and that it has never there been otherwise.20

In our own states—not speaking now of New York—the decisions are uniform, and in harmony with the English doctrine. For example, two or more offences of unauthorized liquor-selling, where each is punishable by a specific fine, may be joined in distinct counts in one indictment, and, on conviction, the full fine for every count may be imposed.21 So it has been held, under a statute, that the keeping open of an ale-house and the selling of ale on a Sunday are two distinct offences; and, on an indictment in two counts, one for each, the fine for both may be imposed.22 But not further to particularize, and observing that our courts hold the doctrine to be applicable equally where the punishment is imprisonment as where it is a fine, the English view of the question, directly contrary to what is adjudged in Tweed's-case, is maintained in Massachusetts,23 in Connecticut,24 in Pennsylvania25 in Missouri,26 in Illinois;27 and it would seem page 13 to be also in Maine28 Ohio,29 Arkansas,30 Wisconsin,31 California,32 and probably some of the other states. On the other hand, I have looked into all the cases cited from the books of reports in Tweed's case, and into such others as seemed to afford any promise of instruction, and I find no one, English or American, ancient or modern, which furnishes a precedent, or an authority, or even a dictum, for the conclusion arrived at by the court. Still, as I have said, I do not question the correctness of this decision as an exposition of New York law. That enquiry does not lie within my path. But if the law out of New York is not settled, as I have thus explained it, contrary to this New York view, then neither adjudication nor legal argumentation can establish anything; our professional books are useless; jurisprudence is a myth.

I should here close; but a single explanation will prevent confusion in the minds of those who look further into this case. It was the English doctrine, established in early times, certainly as early as 1716, and confirmed by the House of Lords, "that," in the language of the judges, "a judgment of' imprisonment against a defendant, to commence from and after the determination of an imprisonment to which he was before sentenced for another offence, is good in law."33 This, is still the doctrine of the common law of England, and, as to felonies, it was confirmed by Stat. 7 & 8 Geo. 4, c. 28, § 10.34 This doctrine has been generally followed in our states;35 but, in a few of them,36 some oversight, or a construction which a statute has been deemed to require, has led page 14 to a holding the other way. Still, there could be no question on this subject in Tweed's case; for the Revised Statutes had provided that, "when any person shall be convicted of two or more offences, before sentence shall have been pronounced upon him for either offence, the imprisonment to which he shall be sentenced, upon the second or other subsequent conviction, shall commence at the termination of the first term of imprisonment to which he shall be adjudged, or at the termination of the second term of imprisonment, as the case may be."37 This statute, it appears, would have rendered a consolidated judgment equally good with one in the form adopted by the court below.38

Joel P. Bishop.

Cambridge, Mass.

1 Stokes v. People, 53 N. Y. 164.

2 2 Bishop Crim. Proced. 2d ed. § 618; Witt v. The State, 6 Coldw. 5; The State v. Holme, 54 Misso. 153, 161.

3 People v. Liscomb, 60 N. Y. 559.

4 Page 581.

5 Commonwealth v. McCulloch, 15 Mass. 227.

6 Commonwealth v. Hills, 10 Cush. 530, 534.

7 Bishop Crim. Proced. 2d ed. §§447, 455.

8 People v. Baker, 3 Hill (N. Y.), 159; Reg. v. Fussell, 3 Cox C. C. 291; 1 Bishop Crim. Proced. 2d ed. § 454, et seq.

9 Bishop Crim. Proced. 2d ed. §§457, 458.

10 Bishop Crim. Law, 6th ed. § 1014.

11 Stark. Crim. Pl. 39; Rex v. Kingston, 8 East, 41; United States v. Stetson, 3 Woodb. & M. 164; The State v. Nelson, 14 Rich. 169; The State v. Brown, Winston, No. 2, 54; Henwood v. Commonwealth, 2 Smith (Pa,), 424; Ketchingman v. The State, 6 Wis. 426; The State v. Kibby, 7 Misso. 317; People v. Shotwell, 27 Cal. 394; together with many other authorities.

12 For example, 1 Bishop Crim. Proced. 2d ed. 448, 452, and the cases there cited; The State v. Gummer, 22 Wis. 441; The State v. Tuller, 34 Conn. 280.

13 People v. Costello, I Denio, 83, 90; Kane v. People, 8 Wend. 203; People v. Rynders, 12 Wend. 425; People v. Gates, 13 Wend. 311; People v. Baker, 3 Hill (N. Y.), 159; Hodgman v. People, 4 Denio, 235.

14 Page 577.

15 Wilkes's Case, 19 Howell St. Tr. 1075, 1134.

16 Page 582.

17 Rex v. Robinson, 1 Moody, 413.

18 Douglas v. Reg., 13 Q. B. 74. See, as to these two cases, 1 Russ. Crimes, 5th Eng. ed. by Prentice, 233, 305, and note; 1 Bishop Crim. Proced. 2d ed. & 1129.

19 Page 576.

20 See, in addition to cases already cited, Rex v. Jones, 2 Camp. 131; Campbell v. Reg., 1 Cox C. C. 269, 2 ib. 463, 11 Q. B. 799; Gregory v. Reg., 15 Q. B. 974.

21 Barnes v. The State, 19 Conn. 398.

22 The State v. Ambs, 20 Misso. 214.

23 Carlton v. Commonwealth, 5 Met. 532; Booth v. Commonwealth, 5 Met. 535 Josslyn v. Commonwealth, 6 Met. 236, 240; Crowley v. Commonwealth, 11 Met. 575; Kite v. Commonwealth, 11 Met. 581; Commonwealth v. Tuttle,. 12 Cush. 505.

24 The State v. Tuller, 34 Conn. 280; Barnes v. The State, 19 Conn. 398.

25 Commonwealth v. Birdsall, 19 Smith (Pa.), 482.

26 The State v. Ambs, 20 Misso. 214; The State v. Peck, 51 Misso. III

27 Mullinix v. People, 76 111. 211, 215; Martin v. People, 76 111. 499.

28 The State v. Hood, 51 Maine, 363.

29 Buck v. The State, 1 Ohio State, 61; Woodford v. The State, 1 Ohio State, 427.

30 Baker v. The State, 4 Pike, 56.

31 The State v. Gummer, 22 Wis. 441.

32 People v. Forbes, 22 Cal. 135; People v. Shotwell, 27 Cal. 394; Ex parte Dalton, 49 Cal. 463.

33 Wilkes's Case, 19 Howell St. Tr. 1075, 1136.

34 I Russ. Crimes, 5th Eng. ed. by Prentice, 81, 82; Rex v. Williams, I Leach, 529; Reg. v. Cutbush, Law Rep., 2 Q. B. 379.

35 Bishop Crim. Law, 6th ed. & 953, and the cases there cited.

36 Prince v. The State, 44 Texas, 480; Ex parte Meyers, 44 Misso. 279; Miller v. Allen, 11 Ind. 389; James v. Ward, 2 Met. (Ky.) 271.

37 2 R. S. of N. Y. p. 700, § 11.

38 5 R. S. by Edm. 560; People v. Forbes, 22 Cal. 135, 138.