Drake v. Barrymore

14 Johns. 166

• Court: New York Supreme Court
• Decided: May 15, 1817
• Status: Published

Opinion

Per Curiam.

The justice erred in deciding, that upon a joint plea of not guilty, two of the defendants could not be acquitted, though there was no evidence against them. (1 Chitty, Pl. 75. 3 East Rep. 62. Cowp. 610.) There is a distinction in this respect,' between a joint plea of the general issue, and a joint plea-of justification. In the latter case, if the plea is not supported as to all, neither of the defendants can be protected under it. (Schemerhron and others v. Trip, 2 Caines Rep. 108. 1 Saund. 28. n. (2.)

As to the second point, the justice decided correctly, that the justification, under the collector’s warrant, could not be admitted under a plea of not guilty. It is not a case within the statute, allowing to certain public officers that privilege; and the act relative to common schools, which creates these officers, is' silent in this respect. The judgment must therefore be reversed on the first ground. - - -

In returning that the plaintiff had released two of the defend~ ants from the judgment, the justice went beyond his office. The plaintiffs in error have no opportunity of controverting that fact, or questioning its legal effect. We cannot therefore, take notice of it on this record.

Judgment reversed.