Volume 14 — New York Criminal Reports

<p>1. Criminal law — Grand jury — Minutes.</p> <p>It is within the power of the court, upon an indictment for murder in the first degree, to entertain a motion to inspect the minutes of the grand jury, and it is addressed to its discretion.</p> <p>2. Same</p> <p>The fact that the defendant was indicted without having had a preliminary examination before a magistrate furnishes a strong inducement to the court to look upon the application with favor.</p> <p>3. Same.</p> <p>The defendant should be permitted to inspect the minutes of the grand jury without first showing the court extraordinay cause or necessity therefor He must show cause which shall be sufficient in the judgment of the court.</p> <p>4. Same.</p> <p>If the indictment is found without sufficient legal evidence to sustain it, it is not an indictment in contemplation of law, and cannot stand.</p>

<p>1. Criminal law—Receiving stolen property.</p> <p>Though larceny and crime of receiving stolen goods are separate, distinct and independent, requiring different kinds of proof, a man can be guilty of the crime of receiving stolen goods from the fact that he has in his possession goods which he himself has stolen.</p> <p>2. Same — Principal.</p> <p>Since by the Penal Code the distinction between accessories and principals has been abolished, the rule does not obtain in respect to every person who may be convicted of the crime of larceny.</p> <p>3. Same.</p> <p>The fact that, under the Penal Code, by aiding and abetting the crime of larceny he became a principal, in no way brings such an accessory within the principle of the rule that a person taking goods feloniously cannot receive them from himself with a felonious intent. This rule, however, in no respect applies to an individual who was not present at the commission of the crime. Although he is guilty of the principal offense, yet, receiving the goods from the actual thief, knowing their origin, he is subject to the penalty for receiving stolen goods.</p>

Habeas corpus. Appeal from special term, Erie county. Harry Sullivan was convicted of larceny, and sentenced to imprisonment, and from an order dismissing his application for habeas corpus, and remanding him to the custody of Alexander' H. Sloane, the keeper of Erie County Penitentiary, he appeala Affirmed. The facts are not disputed. On the 12th day of October,. 1898, the relator,. Harry Sullivan, was brought before Joseph.

<p>1. Sidewalk — Bicycle.</p> <p>The act of willfully riding a bicycle, by any person, upon a sidewalk,' without authority or necessity, whether in a village, city or the country, is a violation of section 653 of the Penal Code.</p> <p>% Same —Burden of proof.</p> <p>The burden is on the people to prove that the defendant willfully rode a bicycle along upon a sidewalk without authority or necessity.</p> <p>8. Bicycle — Conviction.</p> <p>A conviction, under section 653 of the Penal Code, cannot be sustained where there is no evidence that the road was a public highway.</p>

<p>1. Nuisance—Pond and dam.</p> <p>The fact that the control of a pond and dam is vested in the city authorities does not relieve the owner from liability, provided either the maintenance of the dam or the method of its use causes a public-nuisance.</p> <p>8. Same.</p> <p>No failure of duty upon the part of the city in cleaning the pond would afford a defense to the indictment, provided the maintenance of the dam contributed to the nuisance, much more if it was the cause thereof.</p> <p>8. Same.</p> <p>Where a dam erected by a former owner of land has not been used by the new owner, notice to remove is essential.</p> <p>4. Same.</p> <p>Where the owner continuously used the property which caused the nuisance, previous notice to him is not necessary to authorize its abatement.</p> <p>5. Same—Prescription.</p> <p>A dam, though lawfully used for fifty years, may be removed, if operated so as to cause a public nuisance.</p> <p>6. Same—Charge.</p> <p>Upon the trial of an indictment charging the owners of the dam and pond with permitting them to become a public nuisance, it is error for' the court to answer that the jury will have to assume that public officials will do their duty, without also instructing them that the future action ot" officials have nothing to do with the case, and that their verdict must not be influenced thereby.</p> <p>7. Same — Effect of verdict.</p> <p>The jury on the trial of an indictment should not consider what may happen in the future, or the effect of their verdict.</p> <p>8. Misdemeanors — Principals.</p> <p>At common, law, in misdemeanors, there are no accessories — ell concerned, whether instigators or perpetrators, being principals and subject to indictment as such.</p> <p>9. Appeal—Exceptions.</p> <p>Although no exception is taken by the defendant’s counsel to the charge, “the appellate court may order a new trial if it be satisfied that the verdict is against the weight of evidence or against law, or that justice requires a new trial.</p>

<p>1. Criminal law—Abandonment.</p> <p>The pendency of a criminal proceeding before a magistrate of the city of New York is a bar to the acquirement of jurisdiction in a similar proceeding for the same cause, and between the same parties before any other magistrate in any borough of said city.</p> <p>2. Same—Bond.</p> <p>A bond required by section 686 of the charter of the city of New York for the support of a wife or children, to the Commissioner of Public Charities of the borough in which a proceeding for abandonment is brought in order to be a valid and subsisting obligation, must conform to the provisions of the statute. A bond for payment to the Commissioner of Public Charities in the city and county of New York, for the support of a family is not warranted by law, and the giving of such a bond would not preclude an appeal from the judgment of a city magistrate adjudging defendant a disorderly person.</p> <p>3. Same.</p> <p>A wife, abandoned by her husband, does not constitute a family.</p> <p>4. Same.</p> <p>Such officials have ceased to exist; and, in their stead, has been instituted the office of Commissioner of Public Charities of the borough in which’the proceeding is had.</p>

<p>1. Criminal law—Grand jury—Examination.</p> <p>There is no law that requires the examination of a party charged with crime before a magistrate before submitting the case to a grand jury.</p> <p>%. Same—Secrecy.</p> <p>Some things in the grand jury room must be kept secret, to wit, the finding of an indictment where the party indicted is not in custody, but if he shall be in custody then it may be disclosed. Also, how any grand juror votes upon the finding of an indictment.</p> <p>3. Same—Submission.</p> <p>Previous to the statute the case might be presented to the grand jury as often as the district attorney chose. The statute put a limitation upon it. It may be sumitted to a grand jury, and if they refuse to find an indictment, or if an indictment is afterwards for any legal reason dismissed, it may be sent to another grand jury, as often as the court may direct.</p> <p>4. Same—Besubmission. ></p> <p>Any court having authority may direct its resubmission to the grand jury.</p> <p>5. Same—Duty.</p> <p>The duty of a grand jury is this: To inquire, first, whether a crime has been committed; and. second, if it has been, whether there is reasonable cause to believe that the person charged with it has committed it.</p> <p>6. Same.</p> <p>It is the legal duty resting upon the grand jury to find an indictment wherever the evidence before it is sufficient to justify the conclusion, that a crime has been committed, and that the party accused committed it; not necessarily that he is guilty, but that there is enough evidence which, if uncontradicted and unexplained before a trial jury, would result in his conviction.</p>

<p>1. Criminal law—Assault.</p> <p>Defendant may be convicted of the crime of assault in the second degree, under an indictment charging that the assault was made with a pistol, even if the defendant took out his pistol, and with intent to shoot at complainant, fired the revolver, * * * even though the bullet never struck complainant. Intent may be inferred from the act.</p> <p>3. Same.</p> <p>Evidence held sufficient to support conviction of assault in the second degree.</p>

<p>1. Indictment—Grand larceny.</p> <p>Mo indictment is insufficient, nor can the trial, judgment or other proceedings thereon be affected, by reason of an imperfection in matter of form, which does not tend to the prejudice of the substantial rights of the defendant, upon the merits.</p> <p>2. Same.</p> <p>If it can be understood from the indictment that the act constituting the crime is plainly and concisely set forth and with such a degree of certainty as to enable the court to pronounce judgment upon a conviction according to the right of the case, the indictment is sufficient.</p> <p>3. Same.</p> <p>An indictment which is sufficient to inform the defendant of the nature of the accusation against him; to enable him to prepare his defense; to leave the court in no doubt as to the act for which it should inflict punishment, in event of conviction; to admit of the record as a bar to a second prosecution for the same offense, meets the requirements of the Code.</p> <p>4. Same.</p> <p>An indictment for grand larceny in the second degree which charges the defendant with stealing “ one hundred and fifty dollars of the kind of money or the denomination of which is to this grand jury unknown,' is sufficient.</p>

<p>1. Criminal law—Jury.</p> <p>Where the defendant is charged with keeping a house “ for the resort of prostitutes, drunkards, tipplers, gamesters, or other disorderly persons,” before the recorder’s court of Poughkeepsie, he has no constitutional right to a trial by jury.</p> <p>2. Same—Jurisdiction</p> <p>Whether the officer who arrested the defendant should have had a warrant does not affect the question of his conviction, after he was once within the jurisdiction of the court.</p>

<p>1. Criminal law—Continuance.</p> <p>The failure to obtain the testimony of an absent witness, however material, does not require the continuance of a cause, unless the party asking the continuance has used due diligence to procure the attendance or obtain the testimony of the witness.</p> <p>2. Same—Instructions.</p> <p>In charging the jury, it is error for the court to assume the existence of an important fact, which is not conceded or established by uncontradicted proof.,</p> <p>3. Witness—Defendant.</p> <p>Where a defendant in a criminal prosecution has offered himself as a witness in his own behalf, he may be cross-examined to the same extent as any other witness, and he may also be recalled by the state for further cross-examination, but he cannot be recalled as a witness for the state, and compelled to testify in its favor.</p>

<p>1. Criminal law—Indictment.</p> <p>Where, upon the trial of an indictment for forgery, the objection of the defendant to its sufficiency is not apparent upon the face of the instrument, it is proper to raise the questions upon the trial after the opening of the prosecution to the jury; and the admissions made therein by a motion to quash the indictment and to discharge the prisoner.</p> <p>2. Forsery—Stockholder.</p> <p>A stockholder who is not a director, cannot enter into any agreement with the directors after he parts with his money, as to its disposition, in contravention of the by-laws.</p> <p>3. Same—President.</p> <p>The president cannot make an agreement by which the affairs of the corporation will become subject to the will of one who was not a member of the board of directors.</p> <p>4. Same—Directors.</p> <p>Though the board of directors, acting informally, may make an agreement which would be controlling under some circumstances, a group of persons, not shown to constitute all of the stockholders, one at least of whom was not a director, cannot enter into a binding agreement in conflict with the by-laws of the company.</p> <p>5. Same—President.</p> <p>Where the president takes a blank check signed by the treasurer, and countersigned by the stockholder, fills in the amount of the debt, signs the check, and delivers it to another officer of the company, who cashes it, he is not guilty of forgery in the second degree in issuing the check in violation of the parol agreement.</p>

<p>Appeal from judgment, sustaining a demurrer to the indict ment.</p>

<p>1. Criminal law—Indictment.</p> <p>The fact that the statute is expressed in disjunctives, while the indictment employs conjunctives, is not fatal. The pleader may allege all breaches in a single count, employing " and ” where the statute reads “ or,” and there is no duplicity, and the crime will be established upon proof of any one o£ the infractions.</p> <p>2. Same.</p> <p>It is of no moment that the provisions of law violated or evaded are contained in different sections of the charter.</p> <p>3. Same—Separate counts.</p> <p>If acts of omission or commission are component parts or represent preliminary stages of á single transaction, to set them out is not to charge separate crimes.</p> <p>4. Same—Fraud.</p> <p>Before fraud can be predicated of an act, damages must result therefrom, as the proximate result thereof.</p> <p>6. Same—Duplicity.</p> <p>If a count charge two or more offenses, and yet but one of them sufficiently, no charge of duplicity will lie. There must be complete averments of at least to crimes.</p> <p>6. Same—Statute.</p> <p>The rule that in an indictment for a statutory crime, and especially for a misdemeanor, it is sufficient to charge in the words of the statute, does not obtain where the section does not define the offense, and use of the statutory words would not give notice of what the offense consists.</p> <p>7. Same—Demurrable.</p> <p>An indictment which charges the defendant with having let certain work, already specified in this opinion, on January 4, 1898, without advertisement, or procuring sealed bids or proposals, or inviting competition, or without written contract, or specifications, or without requiring security, or without the approval or authorization of the work, or without the certificate of the necessity of the expenditure, or certificate of authorization or of the appropriation therefor, is demurrable, where the statute requires only such work or job which in its several parts involves the expenditure of more than $1,000, to be let by contract.</p> <p>8. Same—Exception.</p> <p>Where exceptions are stated in the enacting clause, unless they be mere matters of extenuation or defense, it will be necessary to negative them, in order that the description of the crime may in all respects correspond with the statute. q</p> <p>9. Same—Sufficiency.</p> <p>An indictment upon a statute must state all such facts and circumstances as constitute the statute offense, so as to bring the party indi" cated precisely within the provisions of the statute.'</p> <p>10. Same.</p> <p>Here inference, however strong, is not a substitute for averment, when the purview of the statute is to be established. The indictment must show what offense has been comitted and what penalty incurred, by positive averment.</p> <p>11. Same.</p> <p>An indictment drawn upon a statute must accurately and clearly state such circumstances and facts as bring the accused precisely within the provisions of that statute.</p>

<p>1. Cbiminal law—Indictment.</p> <p>A count of an indictment setting forth the substance of the offense, with the circumstances necessary to render it intelligible and to inform the accused of the allegations against him, is sufficient.</p> <p>2. Same—Disobdebly house—Complaint.</p> <p>A complaint charging that the defendant had in her apartments, at. the placed named, “opium, or a preparation of opium, used by opium smokers, an opium pipe, and other paraphernalia used in smoking opium, and permitted other persons to visit her apartments for the purpose of smoking opium, in violation of section 388 of the Penal Code,” is sufficient.</p> <p>3. Same—Disobdebly house.</p> <p>It is a misdemeanor to maintain a place at which opium “is smoked by other persons,” but not at which the maintainer alone smokes.</p>

<p>1. Criminal law—New trial—Newly discovered evidence. Power to grant a new trial can only be exercised when the four requirements of the statute are concurrently fulfilled to the satisfaction of the court, and these requirements are conjointly the test of efficiency which must he applied.</p> <p>2. Same.</p> <p>When the defendant makes a motion for a new trial on the ground of newly discovered evidence which he could not with diligence have produced on the trial, he cannot he heard to say that, for prudential reasons, he did not call a witness (himself) who could have testified to the fact</p> <p>3. Same.</p> <p>The moving affidavit must present evidence which will he competent and admissible upon a new trial, if granted.</p> <p>4. Same.</p> <p>There should he an affidavit of the witnesses who will give new evidence that they are ready to swear to the facts claimed to be newly discovered, and an affidavit that the witnesses told the party that they would so swear is not enough.</p> <p>5. Same.</p> <p>A new trial, on the ground of newly discovered evidence, will not be granted where the affidavits of the proposed witnesses do not state that the affiants know the matter therein set forth of their own knowledge.</p> <p>6. Same.</p> <p>Under the latter provision of subdivision 7, the court has not the power to compel the appearance of persons for examination who have not sworn to affidavits presented on the motion for a new trial.</p> <p>7. Same.</p> <p>The judgment, on a motion for anew trial, must not be disturbed, unless it be clearly made to appear that since the trial there has been discovered competent, material, credible evidence, which, if before received, would probably have changed the verdict, which could not have been discovered before the trial by the exercise of due diligence, and which, on a new trial, would probably produce a different result from the former.</p>

<p>1. CBnmrAL law—New tbial.</p> <p>A court will not engage in a proceeding or occupy its time in the consideration of a case wherein it can afford no possible relief.</p> <p>2. Same.</p> <p>To order a new trial after a lapse of years, particularly when a sen tence has been fully executed and when witnesses have disappeared or may be dead, and upon affidavits of certain of the witnesses that they deliberately committed perjury, would be against public policy and make litigation everlasting.</p>

<p>1. Criminal law—Disorderly person—Evidence.</p> <p>On the question whether the defendant has abandoned or neglected the complainant within the meaning of section 899 of the Code of Criminal Procedure, hearsay evidence of first husband is not permissible.</p> <p>2. Same.</p> <p>Such evidence is relevant only in cases where the pedigree to which it relates is in issue, and it is not admissible where it is only relevant to the issue itself, i. e., the alleged marriage of the parties to the present proceeding.</p> <p>3. Same—Proof.</p> <p>The magistrate has no power to find the defendant guilty, as a disorderly person, in that he “ did leave his wife in danger of becoming a burden upon the public,” where the defendant deeded a house and lot to the complainant, and it does not appear that this property is not of sufficient value, as between the town and complainant, to amply protect the town from the complainant’s becoming a burden upon it, and it appears affirmatively that no application has been made by her to the overseer of the poor for support.</p>

<p>1. Criminal law—Conspiracy.</p> <p>The willful neglect, omission and active violation of his official duties by a public officer constitutes a crime under the laws of this state.</p> <p>2. Same.</p> <p>A public officer, or person holding a public trust or employment, upon whom any duty is enjoined by law, who willfully neglects to perform the duty, is guilty of a misdemeanor.</p> <p>3. Same.</p> <p>Under the laws of this state, if two or more persons conspire to commit a crime, each of them is guilty of a misdemeanor.</p> <p>4. Same.</p> <p>No agreement, however, except to commit a felony upon the person of another, or to commit arson or burglary, amounts to conspiracy in this state unless some act besides such agreement be done to effect the object thereof by one or more of the conspirators.</p> <p>5. Same.</p> <p>In the case of a conspiracy to commit a crime, it matters not whether the crime contemplated, is the main object or end sought to be attained by the conspirators, or only a means to that end. It is enough to constitute a conspiracy that the parties, whatever the incentive to the agreement may be or whatever part it may play in a larger scheme, have agreed together to commit the crime.</p> <p>6. Same.</p> <p>An agreement between a public officer and a private person, which in terms provides that the public officer shall willfully neglect and violate any duty enjoined upon him by law, the neglect and violation of which shall appear to both parties to be effective to aid the private person in obtaining money, without specifying what that duty may be, is a criminal conspiracy under the laws of this state.</p> <p>7. Same—Indictment.</p> <p>Under an indictment for conspiracy the time is sufficiently specified as “in or about the month of February, 1896, but on what particular day the grand jury is unable to more particularly set forth.”</p> <p>8. Same.</p> <p>An allegation in the indictment for a conspiracy that the defendant, as commissioner of city works, entered into a conspiracy, is to be considered as charging that he did so while he was commissioner of city works.</p>

<p>The district attorney may appear before the grand jury upon any one of three conditions: (1) When the grand jury requests his advice; (2) When the grand jury requires him to attend and examine witnesses or issue subpoenas; (3) When the district attorney desires to give the grand jury information relative to any matter before them. In the latter case, when the information is imparted to the grand jury, upon their request or direction he must withdraw.</p>

<p>1. Criminal law—New trial—Newly discovered evidence.</p> <p>Where the defendant has complied with the four requirements of section 465 of the Criminal Code, and if each has been substantially fulfilled to the satisfaction of the court, he is entitled to another trial.</p> <p>2. Same.</p> <p>Whenever it is made to appear that a person convicted of crime can produce evidence upon another trial, “such as, if before received, would probably have changed the verdict, if such evidence has been discovered since the trial, is not cumulative, and the failure to produce it upon the trial was not owing to want of diligence,” a new trial ought to be awarded without hesitation.</p> <p>3. Same.</p> <p>The fact that a defendant cannot, from prudential reasons, withhold his own personal testimony from the trial, and cannot thereafter apply for a new trial upon it as newly discovered evidence, does not preclude a new trial where the newly discovered testimony of other witnesses, besides himself, is material.</p> <p>4 Same.</p> <p>0 Where, at the time of the trial, the newly discovered evidence had been temporarily forgotten by both the witness and the defendant, want of diligence in making an application for such a new trial cannot be fairly charged.</p> <p>5. Same.</p> <p>There is no fixed rule by which all applications of this character can be determined.</p> <p>6. Same—Statements.</p> <p>Where the people have been permitted to prove statements of the deceased made by her during her last illness, a statement, made by her to a third party about two weeks before death, that her husband had given her a disease and that both were using for it some medicine of his, is admissible as a part of the res gestee.</p> <p>7. Same—Section 834 of Civil Code.</p> <p>In a case to which this section of the Code is applicable, the privilege cannot be waived by any one save the patient, and if he be dead, the seal of the statute cannot be removed. But the aid of this section cannot be invoked to shield a person charged with the murder of the patient.</p>

<p>1. Criminal law—Burglars’ tools in possession.</p> <p>Evidence tending to prove, not only that the defendant had tools such as are adapted for use and commonly used by burglars, but that he was in the company of four other men who were similarly equipped with tools and revolvers, and that their movements were on that day suspicious, and open to the inference that in concert they were preparing for an expedition on burglary intent, is sufficient to sustain a conviction for having burglars’ tools in possession,</p> <p>2. Same—Reading indictment.</p> <p>The reading of an indictment is but another way of stating what the district attorney expects to prove, and, if not done in bad faith, is not reversible error.</p> <p>3. Same—Intent.</p> <p>The defendant should not be acquitted if his intention was to commit a crime without the state. The crime is complete in this state, if car- . rying tools and intention formed in this state are established.</p> <p>4. Same—Recalling witnesses.</p> <p>It is reversible error for the judge to permit the recall of the officer to testify as to the tools after the case had been closed.</p> <p>5. Same—Indictment.</p> <p>An indictment drawn under sections 508 and 688 of the Penal Code, is for but one crime, but, to determine its grade, it is competent to prove, when charged, that the defendant has been guilty of a previous ofiense.</p> <p>6. Same.</p> <p>Inability to prove such former conviction, does not deprive the trial court of the right to proceed to try the question of the prisoner’s guilt for the very crime for which he was indicted; nor in this is there any variance or inconsistency.</p>

<p>1. Criminal law—Self defense—Charge.</p> <p>. A charge that the burden of proof is upon the defendant to show that he did commit the act in self defense, and that he must establish such fact by a preponderance of evidence, is error. The rule is that in criminal cases the defendant is entitled to the benefit of a reasonable doubt, not only as to the case made by the prosecution, but as to any defense which he has interposed.</p> <p>3. Same—Charge—Error cured.</p> <p>Though, in answer to subsequent requests to charge, the court laid down correct rules of law as to reasonable doubt and the effect to be given to all the testimony, the previous error in the charge is not cured where the two propositions remain without modification or qualification, to the effect that the burden of establishing a defense had shifted to the defendant, and that it did not remain upon the people from the beginning to the end.</p> <p>3. Samis—District attorney’s statement.</p> <p>A statement by the prosecuting officer to the jury that the defendant’s counsel has advised the defendant to plead guilty, is reversible error.</p>

<p>1. Criminal law—Removal—Section 1014 U. S. R. S.</p> <p>In states where the accused has no right to examine witnesses in his own behalf 'before a committing magistrate, he cannot do so in proceedings under § 1014; but in other states, as in Hew York, where this right does exist and is in daily practice, it cannot be lawfully denied him.</p> <p>2. Same.</p> <p>In proceedings under that section, therefore, the commissioner must receive all evidence touching probable cause of guilt that a state committing magistrate would be bound to take, without reference to any subsequent trial upon indictment. ■</p> <p>3. Same.</p> <p>There is no “ issue ” as respects the indictment until the defendants are committed, removed and arraigned and plead not guilty. The inquiry before the commissioner is for the very purpose of ascertaining whether there is sufficient ground to commit and remove the accused and oblige him to plead and stand trial; and to enable him, under the state statute, to arrest the proceedings in limine, if he can, by proving that there is no probable cause for the accusation. That was the only “ issue” before the commissioner on this hearing.</p> <p>4 Same—Conspiracy.</p> <p>The gist of the offense of conspiracy is in the illegal combination and intent, and the statute of limitations begins to run from the time the conspiracy is formed.</p> <p>6. Same.</p> <p>As each new overt act in furtherance of the common purpose becomes in law a new conspiracy, the time of the conspiracy may be laid within the period of the statute of limitations, if the overt act was within that period; the prior combination, if established, and the later overt act being evidence from which a jury may infer the new conspiracy.</p> <p>6. Same.</p> <p>Conspiracy is an offense which especially demands that an indictment shall state with as much certainty as the nature of the case will admit, the" facts which constitute the crime intended to be charged.</p> <p>7. Same.</p> <p>Where in an indictment for conspiracy the object of the conspiracy is not a legal crime, the means intended to be used must be particularly set forth and show that those means are criminal.</p> <p>8. Same—Affidavit.</p> <p>The mere fact that an indictment had been found in another jurisdiction without producing it, is no evidence of probable cause before a committing magistrate ; and a mere affidavit of that fact only will not justify even the issuing of the warrant of arrest. It is only the facts and circumstances stated in the indictment, if any such are properly stated, that are of any value as evidence, and these statements are to be judged and weighed according to what they may be worth.</p> <p>9. Same.</p> <p>Where the indictment is the only evidence of guilt that it presented, some facts showing fraud in the overt acts are as necessary to appear in the indictment as they would be necessary to be proved at the trial.</p> <p>• 10. Same—Removal.</p> <p>The accused, even if guilty, though triable in Georgia also, can only be removed to that jurisdiction by proceedings regularly conducted according to law. To order their removal otherwise, would be an illegal act and scarcely distinguishable from virtual abduction under the forms of law.</p>

<p>1. Grand jury—Presentment.</p> <p>The grand jury should never, under cover of a presentment, present an individual in this manner, for if it has legal evidence of the commission of the crime it should find an indictment against him upon which he could he held to answer, and if it have no such evidence, it ought, in fairness, to be silent.</p> <p>2. Same.</p> <p>The presentment, having been placed upon the files of the court, has become a record of the court, and the court will not expunge it or order it stricken from the files.</p> <p>3. Same.</p> <p>The court’s control over the proceedings of the grand jury continues and may be exercised after the grand jury has adjurned.</p> <p>4. Same.</p> <p>It is not only the right, but the duty of the court tti examine and supervise the proceedings of the grand jury.</p> <p>5. Same.</p> <p>The proper proceeding in such a case is by motion to set aside or to quash the presentment.</p> <p>6. Same.</p> <p>A motion to set aside the presentment should have applied to it the same rules and principles that the law applies to such a motion respecting an indictment.</p> <p>7. Same—Legal evidence.</p> <p>The grand jury can receive none but legal evidence.</p> <p>8. Same—Presentment.</p> <p>The grand jury has no right to make such a presentment on facts within their own knowledge.</p> <p>9. Same</p> <p>The mere presence in the grand jury room of an adviser, or any advisers other than these prescribed in § 263 of Criminal Code, is made imperative ground for setting aside the presentment.</p> <p>10. Same.</p> <p>When such an adviser is not only present, but is asked to give his-opinion under cover of testifying to facts within his personal knowledge, it is the plain duty of the court to set aside the presentment.</p> <p>11. Same.</p> <p>The fact that the presentment is a mere communication between the grand jury and the court, does not render the court without power to act.</p>

The defendant was indicted by the grand jury of the county of Oneida in October, 1899.

<p>1. Larceny—Venue.</p> <p>In order to secure a conviction for larceny under subdivision 3 of section 538 of the Penal Code, it is necessary to prove the two facts— bailment and conversion.</p> <p>3. Same.</p> <p>Making the contract, and taking the property under and in pursuance of it, is an act essential in the consummation of the crime alleged in the indictment under the subdivision.</p> <p>3. Same.</p> <p>There is jurisdiction of the offense in any county in which either or both of such acts take place.</p>