Volume 16 — New York Criminal Reports

<p>1. Indictment of police captain fob failing to suppress house of ill-fame.</p> <p>A captain of police is clothed with ample powers and discretion for the detection and suppression of crime and the arrest of offenders in his precinct. He is required to give the same degree of attention and diligence to the performance of his duties as an ordinarily prudent man bestows on his own concerns, and if he willfully omits or neglects to do that which by law he ought to have done, he commits a crime.</p> <p>2. Same-—Charging more than one crime.</p> <p>An indictment which charges that defendant omitted to perform a duty, by failing to inspect 109 houses of ill-fame in his district, specifying them by street and number, charges but one crime.</p> <p>3. Code Grim. Pro., section 275.</p> <p>Pleading “a house of ill-fame” has a sufficiently legally defined meaning. It is not necessary to plead the particular acts of lewdness.</p> <p>4. Same.</p> <p>But there should be sufficient particularity as to each house by a distinct, separate allegation as to time, place and description, as would, under the general issue, warrant the introduction of testimony as to the character and the acts committed therein, and an indictment against a police captain for neglect of duty which groups 109 houses of ill-fame, by street and number, in one designation, covering a period of fourteen months, is demurrable as not containing a plain and concise statement of the act constituting the crime charged.</p>

Appeals from the defendant from orders convicting' Mm as a disorderly person for abandonment of his wife and for abandonment of his child.

<p>New trial for newly discovered evidence.</p> <p>Defendant offered for sale a violin, which he asserted was a genuine Stradivarius. It was identified as having been stolen from B. Defendant was arrested and arraigned, but the magistrate decided that the violin was not the one stolen and discharged him. Subsequently he was indicted, and on the trial produced a violin which five witnesses swore was the one produced before the magistrate, hut ten swore was not. He was convicted, but now asks for a new trial on the ground that the stolen Stradivarius has been found under circumstances which, if true, would preclude his having it in his possession at the time of his arrest. Held, that considering the uncertainty and the wide divergence of expert opinion on the identity and authenticity of the Stradivarius, and the difficulties which beset the former trial, conflict of testimony, etc., and that the stolen violin is now produced, that justice required that a new trial be granted.</p>

<p>Application for a certificate that, “it is reasonable that the charge herein be proceeded with by indictment.”</p>

<p>1. Anarchy—Misdemeanor—Penal Code, Sec. 675.</p> <p>The teachings of the doctrine of anarchy “ seriously disturb or endanger the public peace ” and “ openly outrages public decency,” so as to bring the punishment for publishing such teachings within the provisions of sec. 675 of the Penal Code.</p> <p>2. Same.</p> <p>The republication in a newspaper of an article originally written fifty years ago against crowned heads, teaching that all rulers are enemies of mankind, who should be hunted and destroyed' through blood and iron, poison and dynamite, shows a deliberate intent to inculcate and promulgate the doctrine of the article and is criminal.</p>

<p>1. Appeal—Effect of Reversal of Conviction upon Indictment.</p> <p>Where the Court of Appeals in reversing a conviction of murder in first degree orders a new trial, the indictment is left to stand as to the crime as though there had been no trial. If it was the intention of the Court of Appeals to prevent the prosecution from proceeding it would have so declared and directed judgment for defendant and for his discharge.</p> <p>2. Indictment—Motion to Dismiss.</p> <p>There is no'authority for a motion for a dismissal of an indictment upon affidavits alleging what did occur or what might have occurred in the grand jury room.</p> <p>3. Grand Jury—Application for Inspection of Minutes.</p> <p>Where an application for the inspection of the minutes, of the grand jury has been denied by a judge and no leave obtained to renew, a new motion stating no new facts will not be entertained.</p>

<p>Indictment—Plea in Abatement Abolished—Code Ceim. Peo., sections 273, 321, 323, 332, 334.</p> <p>The provisions of the Criminal Code are explicit and the authorities are decisive that a plea on information and belief, by a defendant indicted for conspiracy, that one of the members of the 'grand jury that found the indictment was a non-residenit of the county, and that, therefore, the indictment was void, is not a plea authorized by the law and is inadmissable.</p>

Indictment found by the grand jury at the November, 1901, Term of the Supreme Court, held in and for the county of Orange. Transferred to the County Court of Orange county. Indictment charged violation of subdivision 1, section 384h of the Penal Code, in that the defendant required one James Toohey to work more than eight hours for a day’s labor, viz., ten hours per day.

<p>1. Indictment—U. S. Constitution, Fifth Amendment.</p> <p>The fifth amendment to the federal constitution, which declares that no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury does not apply to the States, but only to the federal govern-meat aad courts, but article 1, sectioa 6, of the State coastitution does apply, and where a district attorney elects to prosecute a misdemeanor by indictment he must do so through the medium of a legally constituted grand jury and by an indictment that is good at law, both as to form and substance, and defendants charged with misdemeanor have a legal right to raise the question of the illegal character of the grand jury which found the indictment.</p> <p>2. Same—Grand Jury.</p> <p>When a grand jury has been selected and drawn according to law, and has been impanelled and sworn and recognized by the court as the grand jury, and an indictment, legal and formal on its face, is presented by that body, a record is thereby made which has in fact all the sanctions required by the constitution and the laws, and in the absence of convincing proof beyond all reasonable doubt that the grand jury has either by mistake or intention imposed a manifest and substantial wrong upon the defendant, and that the apparent record is not in fact the true record of the court, it should not be vacated or set aside upon a suggestion that a mere technical or hypothetical wrong has been sustained.</p> <p>3. Same.</p> <p>The fact that two members of the grand jury, one of whom had been excused from serving and the other of whom withdrew after hearing some of the testimony but took no part in the finding of the indictment, were perhaps not actual residents of the county when the indictment was found, does not invalidate it.</p>

<p>New Trial—Newly Discovered Evidence—Code Grim. Prod., Sec. 465, sued. 7.</p> <p>Although, iu civil cases, newly discovered evidence which is cumulative does not necessarily afford ground for denying the motion for a new trial, a different rule prevails in criminal cases, and where none of'the substantial rights of defendant are violated upon his trial and the newly discovered evidence is simply cumulative, a motion for new trial will be denied.</p>

<p>1. Indictment.</p> <p>The inspection of the minutes of the grand jury is not a right which any indicted person possesses, and the leave to examine lies in the discretion of the court.</p> <p>2. Same—G-band Juey May Examine in the Eibst Instance.</p> <p>The grand jury is a court of original inquiry, and its scope of inquiry is not limited to cases where a preliminary examination has been had before a magistrate.</p> <p>3. Same.</p> <p>The facts, concerning a disorderly house, collected by a faithful discharge of duty by a police captain could he used for either one of two purposes, either to repress the crime or to hold the proprietress of the house in terrorem for tribute, and where the testimony is wholly barren of any .proof of defendant to use it to repress it was sufficient to support a verdict that he wilfully omitted to discharge his duty.</p> <p>4. Same.</p> <p>A modified effort to enforce the laws is not sufficient, nor have the police officers any discretion in the premises.</p> <p>5. Evidence.</p> <p>Upon the trial of a police captain for failing to suppress a house of prostitution, weekly reports of defendant stating that the place in question, was not a house of prostitution are admissible in evidence where limited by the court to the question of the wilfulness of defendant in failing to discharge.</p>

<p>1. Jurisdiction—Misdemeanor—New York City—Code Ceim. Peoc., Sec. 56; Penal Code, Sec. 666—Speeding Automobile.</p> <p>A city magistrate of New York city has no jurisdiction to try a charge of misdemeanor under Penal Code, section 666, as amended by chapter 266, Laws 1902, making, driving or operating an automobile upon a city highway at more than eight miles an, hour a misdemeanor.</p> <p>2. Same—Laws 1901, Ch. 466, Sec. 1409.</p> <p>A city magistrate cannot try any charge of misdemeanor, as the Court of Special Sessions has exclusive jurisdiction of all misdemeanor committed within the city of New York, except charges of libel and except when jurisdiction shall have been divested by indictment or removal.</p>

<p>Judgment of Conviction Reversed Where Testimony not Preserved.</p> <p>A judgment of a City Magistrate’s Court adjudging the defendant guilty of disorderly conduct must be reversed where no evidence is contained in the return, and where it appears that through the oversight of the court below no evidence was preserved.</p>