Volume 15 — New York Criminal Reports

<p>1. Bastardy—Mistake in commitment.</p> <p>The use of the words “ Court of Sessions ” instead of “ County Court ” in the original warrant committing defendant for failure to comply with the terms of a valid order of filiation does not actually prejudice the person charged in respect-to a substantial right, and the error may be disregarded.</p> <p>2. Same.</p> <p>If it were impossible to sustain the imprisonment on account of the misnomer of the court in the original warrant of commitment, the relator can be lawfully detained under a corrected warrant.</p> <p>3. Same—Habeas corpus.</p> <p>If the mistake or error in the warrant of commitment could be corrected, the prisoner is not entitled to a discharge on habeas corpus.</p>

<p>1. Indictment—Setting aside—Code Crim. Pro. § 313.</p> <p>Section 313 of the Code of Criminal Procedure as amended chap. 427, Laws 1897, specifies all the grounds upon which a defendant may-now move to set aside an indictment, excepting only grounds by which his constitutional rights are invaded.</p> <p>2. Same.</p> <p>The fact that no order or permission had been obtained from the court to present the matter a second time to the grand jury does not constitute grounds for setting aside such indictments.</p>

<p>1. Disorderly person—Magistrate must preserve testimony against.</p> <p>It is reversible error for a magistrate to neglect to preserve the testimony upon which a person is convicted of disorderly conduct.</p> <p>2. Same.</p> <p>Where defendant is adjudged a disorderly person in failing to support his wife and has given a- bond to comply, nothing but that part of the order fixing the amount of the weekly payment can be appealed from.</p>

<p>Application for leave to inspect and take a copy of the minutes of the grand jury.</p>

The defendants, members of the International Bakers’ Union No. 164, were placed on trial before Justice Warren W-Foster and a jury on the 29th and 30th days of October, 1900,, on an indictment for conspiracy under section 168 of the Penal Code. At the close of The People’s case, counsel for the defendants moved for the acquittal of the defendants upon the ground that no conspiracy had been proven.

<p>1. Grand Larceny—Attempt to Commit Crime by False Pretences— Penal Code, § 34.</p> <p>An attempt to commit a crime is clearly a separate and distinct offense, and does not necessarily require or depend upon the concurrence of a third party and may be completed absolutely without the knowledge of the party selected as its victim.</p> <p>2. Same.</p> <p>Where an indictment under Penal Code Sec. 34 states that defendants acting together and with a common purpose made certain representations to complainant and demanded and requested the payment of a certain sum of money with which they alleged they had arranged to bribe a judge of the supreme court and the district attorney, and thereby to secure the release of the complainant who was a prisoner under indictment, it is not necessary to further allege that complainant relied on the representations and parted with the money. Defendants were indicted for attempted grand larceny in the second degree, in making false representations to Elizabeth Fitzgerald that they would for $2,000 obtain the dismissal of two indictments by paying said money to one of. the justices of the court, the district attorney, and his clerk, by whom they claimed they had been promised that the indictment would be dismissed, etc.</p>

The information was in the following words, to-wit: “ Oneida County, .w. ; “ Wallace Clow, of the town of Western, Oneida county, N. Y., being duly sworn, says that on the 9th day of August, 1900, in said town of Western, the defendant above named struck him in the face with his fists and knocked him down and kicked him.

<p>1. Grand Jury—Presence of deputy attorney-general in grand jury room—Code Crim. Proc. § 313; sub. 2.</p> <p>The deputy attorney-general may attend before the grand jury in any county within the Metropolitan election district under ch. 737 of the Laws of 1900 in the prosecution of crimes against the elective franchise, and does not in so doing violate § 313, sub. 2 of the Code of Criminal Procedure, which forbids anyone other than the district attorney to be present during the session of the grand jury while the charge embraced in an indictment is under consideration.</p> <p>2. Same—Chap. 737. Laws 1900, applicable to a crime committed in 1896.</p> <p>The Executive Law as amended in 1900, empowering the attorney-general or his deputy to represent the people in the prosecution of crimes against the elective franchise before all magistrates and in all courts and before any grand jury is a valid exercise of the legislative power.</p>

<p>Indictment—Dismissal under Code Crim. Pro. § 671, discretionary.</p> <p>The discretion of the court should not be exercised to dismiss an indictment charging an attache of the court with an attempt to commit the crime of grand larceny by false pretenses, as in such a case there should be the greatest possible publicity in disposing of the matter.</p>

<p>Indictment—Dismissal under Code Crim. Pro. § 671.</p> <p>Where there was no proof before the grand jury that the statements made by defendant as to the responsibility of S-were false or that the opinions expressed by him were made with intent to deceive, the evidence is insufficient to warrant an indictment under section 258 of the Code of Criminal Procedure, and an indictment so found should be dismissed under Code Crim. Pro. § 671.</p>

<p>1. Libel—Indictment—Demurrer.</p> <p>Where an indictment contains the entire publication alleged to be libelous, it may be presumed as a matter of law, and the court may take judicial notice, that the publication had a tendency to injure the complainant in business.</p> <p>2. Same—Duplicity in indictment.</p> <p>Where an indictment charges that certain alleged libelous statements were contained in a “ printed circular and handbill ” it is not bad for duplicity where it appears that only one instrument alleged to be libelous was published.</p>

Application by the people, on relation of Benjamin Steinhardt, for peremptory mandamus against William M. Fuller, clerk of the court of special sessions.

<p>1. Indictment—Dismissal of.</p> <p>An indictment will be dismissed on motion where it appears that the transaction which led to the indictment would seem to constitute a co-partnership between the complainant and the defendant, and whatever remedy the party claiming to be aggrieved had must be had in a civil court in an action for an accounting.</p>

<p>Application by Thomas J. O’Neill for a discharge on habeas corpus pending examination before the magistrate.</p>

<p>Appeal by Paul Krivitzky from judgment of court of special sessions of city of New York convicting Henry Gluckman and Paul Krivitzky of making and counterfeiting a trade-mark, in violation of Pen. Code, § 364.</p> <p>The following is the complaint referred to in the opinion :•</p> <p>John F. Miller, being duly sworn, deposes and says as follows : (1) That he resides at No. 714 Halsey street, in the borough of Brooklyn, in the city of New York, and is twenty-five years of age, and is by occupation a special agent. (2) That at all times hereinafter named Edward Martell, Rene Fireno, and Richard Harrison were, and still are, co-partners, under the firm name and style of Martell & Co., lawfully doing business as manufacturers of and dealers in brandy at the borough of Manhattan, in the city, county, and state of New York, and elsewhere, and that the true and genuine label and trade-mark of the said co-partners is hereto annexed, and marked “ Exhibit A,” and made a part of this affidavit, complaint and information. (3) That on the 29th day of May, 1900, at the borough of Manhattan, in the city, county, and state of New York, at the premises No. 215 Broome street, the said Henry Gluckman introduced the deponent to the said Paul Krivitzky, in accordance with previous conversations between the deponent and the said Henry Gluckman, and then and there informed the deponent that the said Paúl Krivitzky would make and print for the deponent false and counterfeit labels and trade-marks of the said co-partners, from a false and counterfeit die theretofore made by the said Gluckman; and the said Paul Krivitzky then and there offered to make and print the same in accordance with the suggestion of the said Henry Gluckman. (4) That thereafter, and on the 16th day of June, 1900, at the borough of Manhattan, city, county, and state of New York, at the premises No. 215 Broome street, the said Paul Krivitzky delivered to the deponent five thousand false and counterfeit labels and trade-marks of the said co-partners, and received therefor the sum of $42 in good and lawful money of the United States of America, having theretofore received therefor on account thereof $20 in good and lawful money of the United States of America, making the total-price of such false and counterfeit labels and trade-marks of the said co-partners to be the sum of $62; that a copy of the said false and counterfeit trade-marks of the said co-partners so delivered as aforesaid is hereto annexed, and marked “ Exhibit B,” and made a part of this complaint. (5) That the said Henry Gluckman introduced the deponent to the said Paul Krivitzky as aforesaid, and did agree with the said deponent and the said Paul Krivitzky that the said false and counterfeit labels and trade-marks should be unlawfully, knowingly and falsely so made and counterfeited as aforesaid, and did, therefore, unlawfully, knowingly and falsely participate with the said Paul Krivitzky in said crime as aforesaid, and did unlawfully, knowingly and falsely aid and abet in its commission, and did unlawfully, knowingly, and falsely induce and procure the said Paul Krivitzky to commit the said crime aforesaid. (6) That the deponent is engaged in business as a special agent for the said co-partners, and is familiar with the genuine label and trade-mark of the said co-partners and knows of his own knowledge that Exhibit A, hereto annexed, is the true and genuine label and trade-mark of the said co-partners, and that Exhibit B, hereto annexed, is a false and counterfeit trade-mark of the said co-partners. (7) That the said Henry Gluckman and Paul Krivitzky, acting in concert as aforesaid, did, on said 16th day of June, 1900, at the borough 'of Manhattan, in the city, county, and state of New York, unlawfully, falsely, and knowingly make and counterfeit the label and trade-mark of the said co-partners as aforesaid. The deponent prays, therefore, that a warrant issue for the apprehension of the said Henry Gluckman and Paul Krivitzky, and that they be apprehended and dealt with according to law. [Signed] John F. Miller.</p>

Application by the defendant, charged with murder in the first degree, for an assignment by the court, for his defense, of counsel selected by him.

<p>Grand jury—Resubmitting charge to—Code Crim. Pro., § 270.</p> <p>The power of the court under Code Crim. Pro., § 270 to. resubmit dismissed charges to a grand jury should be sparingly and discrimingly used, and should not he exercised where it merely appears that the district attorney does not agree with the grand jury and was of the opinion that the grand jury and that if the charge was again submitted an indictment might be found, but no facts to justify such opinion are set forth in the affidavit or application.</p>

<p>Forgery—Indictment—Description of forged instrument.</p> <p>An indictment for forgery in the second degree read “ which said forged instrument and writing in substance is as follows, that is to say:</p> <p>‘ New York,-, 1900.</p> <p>The Chemical National Bank Pay to Samuel W. Levey, or order, forty-one 78-100.</p> <p>$41.78-100. Stiefel, Sachs Sc Company/</p> <p>“ a more particular description whereof is to the grand jury aforesaid unknown.” Held, not demurrable, as the words “ in substance,” and “a more particular description whereof is to the grand jury unknown” might be rejected as redundancy, as the tenor and not the substance of the instrument was in fact pleaded.</p>

.Demurrer to indictment for grand larceny by means of false pretenses, on the ground that the facts stated do not constitute a crime.

The defendant was arrested upon the complaint of Marie Medley, and accused of the crime of grand larceny in the first degree, committed May 27, 1898, by taking from her two bracelets valued, respectively, at $1,600 and $400.