Volume 13 — New York Criminal Reports

Appeal by the defendant, James Lyons, from a judgment of the county court of Monroe county in favor of the plaintiff, and entered in the office of the clerk of the county of Monroe convicting him of the crime of burglary in the third degree ; also from an order entered into said clerk’s office on the 26th day of December, 1896, denying the defendant’s motion for a new trial made upon the minutes, and also from an order, made by the special county judge of Monroe county and…

. Application by the people of the state of New York, on the relation of John W. Keller, commissioner of public charities of the city of New York, against Elizur B. Hinsdale and others, constituting the justices of the peace of the court of special sessions of the first division of the city of New York, and Adam Ludwig, for a writ of prohibition. From an order granting the writ, defendants appeal. Affirmed.

<p>1. Criminal law—Certificate—Petit larceny.</p> <p>Certificate of conviction of petit larceny need not specify the articles stolen, nor state from whom they were taken.</p> <p>2. Criminal law—Former acquittal—Petit larceny.</p> <p>Plea of former acquittal or conviction consists partly of matters of record and partly of matters of fact. Latter are the averment of the identity of the offense and of the person, and evidence is admissible to show that, in fact, the crimes are the same.</p> <p>8. Habeas corpus—Question. .</p> <p>The only question, upon the return of a writ of habeas corpus to require the cause of imprisonment of one detained under an apparently valid legal process, is whether the court has jurisdiction to try the re lator. The merits of the conviction are not open for review.</p>

<p>1. Adulteration—Milk—Sale.</p> <p>The statute does not declare the mere possession of impure milk un lawful, and it only applies where there is some action taken, or ir tended to be taken, by the person charged, whereupon traffic in th adulterated article may be founded.</p> <p>2. Same—Presumption.</p> <p>It cannot be presumed that the defendant was engaged in an uniats ful act.</p> <p>3- Same—Proof.</p> <p>Evidence, in this case, held not sufficient to warrant a recovery.</p>

<p>1. Indictment—Second offense.</p> <p>The indictment should charge the first conviction.</p> <p>2. Criminal law—Second offense.</p> <p>Defendant cannot admit part of the charges in an indictment and restrict the trial to the other charges put in issue.</p> <p>3. ' Same—Constitutional.</p> <p>Legislature may make an act committed by one, who has previously been guilty of a crime, a greater offense than the same act when done by a person hitherto innocent of offense.</p> <p>4. Same.</p> <p>Provision, which authorizes the people, upon a plea of not guilty, to prove a former offense charged in the indictment, even though admitted by defendant, is not, on that ground, unconstitutional.</p>

<p>1. Evidence—Burglary—Conviction.</p> <p>Where the people wish to prove that another person previously convicted of the same offense, was one of the men connected with the burglary in question, it cannot, as against the defendant, be shown by the indictment, plea, or judgment of conviction against such person.</p> <p>2. Appeal—Error disregarded.</p> <p>Error in receiving or rejecting evidence can only be disregarded where it could, by no possibilty, have produced injury.</p>

<p>1. Criminal law—Order op proop.</p> <p>Where evidence of a combination is insufficient to authorize the reception of declaration of other party in absence of defendant, but the deficiency is afterward supplied, the question becomes one simply of order of proof.</p> <p>2. Evidence—Subornation op perjury—Other attempts.</p> <p>Evidence of attempts to induce other persons to testify falsely in the same action, which bears directly upon the motive and intent, has relation to the same transactions and purpose, to establish a fact in issue upon the trial, to which it is material and connected in point of time, is admissible on trial of defendant upon indictment charging subornation of perjury.</p> <p>3. Witness—Impeachment—Cross-examination.</p> <p>Witness may not he examined respecting collateral questions for the purpose of forming bases for the impeachment of such statements by the testimony of other witnesses.</p> <p>4. Subornation of perjury—Question for jury.</p> <p>Testimony, on part of people, by person who was procured to testify falsely, must, if corroborated, be submitted to jury.</p>

<p>1. Evidence—Accomplice—Corroboration.</p> <p>Where, in case of testimony of accomplices, there is some corroborative evidence fairly tending to connect the defendant with the commission of the crime, it is for the jury to determine whether the corroboration is sufficient.</p> <p>3. Appeal—Curing error.</p> <p>Where counsel desires the court, in addition to striking out the evidence, to charge the jury to disregard it, he should make such request to the court.</p> <p>3. Hew trial—Hewly discovered evidence—Discretion.</p> <p>Motion for new trial on the ground of newly discovered evidence is addressed to the sound discretion of the court.</p> <p>4. Same.</p> <p>Defendant will not be permitted to await the result of a trial and, when the result is adverse to him, claim new trial for the want of evidence that with reasonable diligence he could have produced upon the ' trial.</p> <p>'5. Same.</p> <p>Denial of such motion will not be reversed if substantial justice has been done. ■</p>

<p>GeIMINAI, LAW—SUMMONING JURY.</p> <p>Venire, issued by a magistrate in a criminal action, musí be delivered to, and served by, a constable and not a deputy sheriff, and service thereof by the latter, against speciflc objection by defendant, is fatal error.</p>

<p>1. Criminal law—Certificate of conviction.</p> <p>Where the authority of the sheriff to hold and detain the prisoner is contained only in the certificate of conviction, latter is defective, where it does not contain a statement of the magistrate showing his jurisdiction to try or to pass judgment upon the defendant after trial and conviction.</p> <p>2- Same.</p> <p>Omission in the certificate of any statement showing the time when such offense was committed, or where it was committed, renders the certificate non-effective and void.</p> <p>3. Same—Certified by officer.</p> <p>A certificate of conviction, not certified by either the magistrate or clerk of the county, is not, in matter of form or substance, as the statute provides.</p> <p>A Same—Mandate.</p> <p>Certificate of conviction, in absence of commitment or mittimus, which does not contain any mandate to the sheriff to receive and con fine the prisoner, is without known authority of law and, therefore, illegal.</p> <p>5. Habeas Corpus—Judgment.</p> <p>An officer, detaining a prisoner, may ¿lways assert a legal judgment as his authority for the detention, but he must establish the fact of such judgment.</p>

<p>1. Appeal—Special county judge.</p> <p>Special county Judge of .St. Lawrence county has power to allow an appeal from a judgment of conviction by. a court of special sessions.</p>

<p>1. Justices oe peace—Incobpobated villages.</p> <p>Any justice of the peace of the town of Augusta has, until the office of police justice is established in the village of Oriskany Falls, jurisdiction to hear, try and determine charges of misdemeanor committed in said village.</p>

<p>1. Criminal law—Allowance to counsel.</p> <p>Legislature intended to limited the aggregate ainount to be allowed to counsel assigned by the court to defend a person indicted for an offense punishable by death to the sum of $500, regardless of the number of counsel assigned, and also to allow the personal and incidental expenses of the counsel.</p> <p>2. Appeal—Certificate awarding compensation to counsel.</p> <p>There is no authority for an appeal to the appellate division from the certificate of the justice presiding at the trial awarding compensation to counsel under section 808 of Criminal Code.</p>

<p>1. Juror—Competency—Actual bias.</p> <p>Where a juror states that he has a decided opinion as to defendant’s guilt or innocence which it would take evidence to remove, and that he does not think he would he unprejudiced, challenge for actual bias should be sustained.</p> <p>8. Evidence—Documentary—Books.</p> <p>Upon the trial of an indictment against a city treasurer for altering a pay roll, a time book, kept by the street superintendent and containing the names of each person employed, the time he labored, his wages and the amount due him is inadmissible in evidence generally, in the absence of proof that'it was made in the performance of his duties and was correct.</p> <p>3. Same—Memorandum.</p> <p>Such hook may be used by the Street superintendent to refresh Ms recollection.</p>

<p>1. Criminal Law—Good character.</p> <p>A charge that if the jury, after a consideration of all the evidence,, were satisfied of the guilt of the defendant beyond a reasonable doubt, good character is no defense, is not erroneous.</p> <p>2. Liquor tax law—Good faith.</p> <p>It is not erroneous, under suhd. 2, section 31 of Liquor Tax Law to-submit to the jury evidence as to the good faith of the party or parties-who order the meal in question.</p> <p>3. Appeal—Harmless error.</p> <p>Where, upon the trial of an indictment for selling liquor on Sunday,a witness testifies, apparently from his own knowledge, that defendant paid the bill, the latter is not harmed by a ruling, denying a motion to strike out the testimony of such witness that certain hooks showed that beer was sold to defendant.</p> <p>4. Same.</p> <p>So, on the trial of an indictment for selling liquor on Sunday, the contradiction of a letter, written by defendant’s son to the mayor, which contained a statement of defendant’s position in a manner entirely correct according to this claim then and at the trial, cannot effect any substantial right of defendant.</p> <p>5. Liquor tax law—Joint sale.</p> <p>Where in an indictment for selling liquor on Sunday, a joint sale to-four persons is alleged, it is not material which one of the four purchased the liquor.</p>

<p>1. Burqlar’s tools—Possession.</p> <p>The evidence was held to tend to show that a “ jimmy,” which is concededly a tool or implement used for the commission of burglary, was in defendant’s possession, under circumstances evincing an intent to employ it in the commission of a crime.</p> <p>2. Evidence—Relevancy.</p> <p>Question, asked of the accused by his counsel, whether or not, on the next day in the police court, the officer did not make a charge against his companion, was properly excluded.</p> <p>3. Criminal law—Second offense.</p> <p>Where, on trial of indictment under section 508 of Penal Code, it appears that the defendant had been previously indicted and convicted ol a crime, it is proper to exclude a question directed to showing defendant’s efforts to reform.</p>

<p>1. Indictment—Labcbnt.</p> <p>An indictment for larceny at common law cannot be upheld by proof only of the procurement of property by false or fraudulent representations.</p> <p>8. Same.</p> <p>Under an indictment for grand larceny charging that the prisoner “ feloniously did steal, take and carry away ” $1000, the property of another, it is competent for the prosecution to give evidence of larceny by trick and device; and according to all the cases, the test of the sufficiency of the proof to sustain the charge in the indictment is, did the complainant intend to pass title to the money mentioned in the indictment, or did he give that sum of money into the possession of the defendant for a special purpose to be applied to that purpose only, and did the defendant, instead of so applying that money, appropriate it to his own use ?</p> <p>3. Same—Copabtnebship.</p> <p>Where a real estate broker falsely stated to the complainant, a party intended to purchase land, that another person was ready to purchase the same at an increased price, and, at the same time, proposed to make an arrangement with the complainant by which the profits of the resale should be divided between them, and by such means obtained money from him to be used for the sole purpose of paying it over to the vendor of the land, which was to be conveyed to the ’complainant when satisfied as to the title and value of the property, the case is not one in which one copartner gives money to another, to be used in the copartnership business. The money is given to be used only for a specific purpose and under special circumstances and conditions. The copartnership contemplated between the parties constitute them, not joint owners of the property to be purchased, but simply of the product of the sale thereof.</p> <p>4. Criminal law—Labcbnt.</p> <p>If a person obtains possession of property from the owner for a special purpose by some device, trick, artifice, fraud or false pretense, intending at the time to appropriate it to his own use, and he subsequently does appropriate it to his own use and not to the special purpose for which he received it, he is guilty of larceny,</p> <p>5. Same—False bbetenses.</p> <p>If a person, through the fraudulent representations of another, delivered to him a chattel intending to pass the property in it, the latter can not be indicted for larceny, but only for obtaining the chattel under false pretenses.</p>

<p>Husband and wive—Support—Adultery.</p> <p>Where cross action for a dissolution of the marriage contract on the ground of adultery are brought by a husband and wife, each against the other, and the relief denied in each, because both parties were found guilty, the husband is not released from liability for her support in an action by the commissioner of public charities.</p>

<p>1. Commitment—Breach of peace. '</p> <p>Where warrant of commitment for breach of peace in threatening to commit a- crime, which recites that “an order having been this day made by me that Bert Day be held to answer to the court of Oneida county, next session grand jury, upon a charge of breach of peace,” etc., but does not recite or show that the relator was required to give an undertaking in any sum or amount, or the omission to give security is void.</p> <p>3. Criminal law—Habeas corpus.</p> <p>In such case, habeas corpus in the proper remedy to secure the discharge of the person committed.</p>

Habeas corpus to obtain á discharge from imprisonment under a conviction of a justice of the peace of the town of Malone for a criminal assault committed in the village of Malone.

<p>( Indictment—Sufficiency.</p> <p>An indictment, which alleges that the accused was the commissioner of city works, and on a certain day unlawfully and feloniously agreed to employ a person to do certain public work if such person would cease to dispute a claim of accused’s firm, and would give notes therefor, and that the contract was so arranged as to make the first payment for the work precede the maturity of the notes, and that such person did give notes to the accused and the latter did so employ a person agreed on, who was paid out of the city fund, and that the said notes were then paid, is a sufficient statement of the acts constituting the offense prescribed by section 72 of the Penal Code.</p> <p>2. Beibeby—Officer.</p> <p>The defendant is within the description of the public officers affected.</p> <p>3 Same—Illegality of consideration.</p> <p>The fact that the notes were void because of the corrupt agreement under which they were given, cannot avail the defendant.</p> <p>4. Indictment—Duplicity.</p> <p>In order to render an indictment bad for duplicity where a second charge is defectively presented, it must be clear that it was intended to set out more than one offense; otherwise, the additional matter will be rejected as surplusage.</p>

<p>1. Criminal law—Notice of appeal.</p> <p>If the affidavit and allowance of the appeal is delivered to the magistrate or clerk of the court rendering the judgment within five days after the allowance of the appeal, the appeal is deemed taken. It is not necessary to serve the affidavit and order upon the district attorney to perfect the appeal.</p> <p>2. Same—Warrant.</p> <p>Where the arrest is properly made without a warrant, there is no necessity for its subsequent issue.</p> <p>3. Same—Certificate.</p> <p>A justice of the supreme court or a county judge has no power, when the charge against the defendant is intoxication in a public place, to order that the charge be prosecuted by indictment. The court of special sessions has exclusive jurisdiction to try and determine the charge against the defendant.</p> <p>4. Same—Sentence—Modificatton.</p> <p>Section 764 of the Code of Criminal Procedure confers upon the court the power to modify the sentence imposed upon the defendant, if the court shall deem it in furtherance of justice to do so.</p>

The appellant, Owen Sullivan, a police officer of New York City, and John Spaulding, a station-house doorman, were indicted for felonious and willful assault with a club upon a prisoner, John Dalton, whoser real name is William Rooney, Sullivan had arrested Dalton for highway robbery, and the alleged assault took place in the station house, after Sullivan and Spaulding had been ordered to conduct the prisoner to a cell.

<p>Appeal from a judgment convicting defendant of an assault in first degree, and from an order denying a motion in arrest of judgment, and an order denying a new trial.</p>

<p>1. Criminal law—Exclusion of evidence.</p> <p>Wnere the character of the offense charged is of such enormity, and its details so revolting, that jurors, in their indignation at the character of the offense charged, are apt to lose sight of the only real issue in the c.ase, it becomes necessary to adhere strictly to those rules of evidence which are intended to exclude extraneous matter, and to admit only such evidence as legitimately bears upon the true issue to be tried.</p> <p>2. Same.</p> <p>The defendant should not have added to his difficulty in establishing his innocence the reception of matter calculated to prejudice him in the minds of jurors, unless such evidence is strictly legitimate.</p> <p>3. Same—Evidence.</p> <p>The testimony of the stenographer who attended the grand jury when the indictment was found, that a witness in whose presence the crime was stated by the prosecuting attorney to have been committed, was material for the people before such jury, when followed by evidence of interviews between defendant and such person just before the trial, is prejudicial error when, on being called, she refused to testify on the ground of privilege.</p> <p>4. Same.</p> <p>Testimony of a physician who made an examination of the complainant just before or during the progress of the trial, about four years after the alleged commission of the offense, and after the complainant admitted that in the meantime she had intercourse with other people, can not be corroborative evidence, tending to connect the defendant with the crime charged.</p>

<p>Criminal law—Wager.</p> <p>An optional contract for the sale of property is a wager within the statute, and therefore void, where it is the intention not to sell or deliver the property by the one party or to purchase it by the other, but merely to settle the difference in money, according to fluctuations in market values.</p>

Appeal by the defendant, Thomas J. Ray, from a judgment of the county court of Orange county in favor of the plaintiff, upon the verdict of a jury convicting him of the crime of feloniously receiving stolen goods, knowing them to have been stolen. HATCH, J. I dissent from the doctrine announced by the Presiding Justice in his opinion in this case. After a careful reading of the testimony, I am unable to find that any technical error was committed upon the trial.

<p>1. Criminal law—Defrauding hotel keeper.</p> <p>A guest who has been guilty of no fraud except inability to pay the amount of a board bill already incurred, if he goes away openly, and for the ostensible purpose of obtaining the money to pay the amount of the bill, is not liable to arrest and conviction.</p> <p>2. Same.</p> <p>The mere fact of inability to pay a hotel bill is not made a crime.</p>

<p>Appeal from a judgment convicting defendant of presenting for audit a false and fraudulent bill for fees as coroner.</p>

<p>1. Criminal law—Grand jury.</p> <p>The grand jury may at any time inquire into a crime which has been committed in the county, and if definite action be taken by indictment every inferior tribunal is immediately ousted of jurisdiction, and it makes no difference whether the inferior tribunal has acquired jurisdiction of the case.</p> <p>2. Same.</p> <p>It cannot be enjoined from acting, pending a coroner’s examination of a person held by him for murder in the first degree, unless it appears that the defendant will be unjustly oppressed or harassed by any contemplated action by the grand jury.</p>

<p>1. Criminal law—Misdemeanor—Jury trial.</p> <p>A person charged with a misdemeanor has no constitutional right to a trial by jury.'</p> <p>2. Same—Special sessions—Jurisdiction.</p> <p>Courts of special sessions in the city of New York have exclusive jurisdiction for the trial of cases of misdemeanor, unless for reasonable cause they are divested of that jurisdiction.</p> <p>3. Same—Removal to general sessions.</p> <p>As a necessary prerequisite to the removal of a case from the special sessions, the judge shall certify that it is reasonable that the charge should be prosecuted by indictment. It should be made to appear that there exists some cause which is likely to be prejudicial to the rights of a party or to injuriously affect the fair and impartial administration of justice, or that there are involved exceptional and important questions which a trial of by indictment in conrt of record would be seemly and proper.</p>

<p>1. Habitual criminals—Repeal.</p> <p>Chapter 357 of 1873 was in effect repealed by the provisions of sections 510-514 and 899-903 of the Code of Criminal Procedure.</p> <p>2. Same.</p> <p>Where the subject-matter of previous legislation has been substantially covered by the Code, the former will be deemed to have been repealed or superseded by the latter.</p> <p>3. Same.</p> <p>The provisions which are contained in the Penal and Criminal .Codes with respect to habitual criminals were intended by the legislature to be a substitute for the Act of 1873.</p>