Volume 18 — New York Criminal Reports

Appeal by the defendant, Edward M. Grout, comptroller of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of May, 1903, granting the relators’ motion for a peremptory writ of mandamus requiring the appellant to pay to the relators the amount awarded by a justice of the Court of General sessions of the county of New York to Ambrose H. Purdy, as…

Application to a justice of the Supreme Court for a certificate of reasonable doubt on appeal from a judgment of conviction of grand larceny in the first degree.

<p>1. 'Grand Jury—A Specific Crime Must be Shown to Have Been Committed by a Particular Person, Known or Unknown, Before the Grand Jury can Summon and Examine Witnesses.</p> <p>To authorize the grand jury to exercise the power and duty it has to inquire into all crimes committed or triable in the county, it must be made to appear by complaint or information or knowledge acquired that there is reason to believe that a crime of a specific.'character has been committed by a particular person, whose name may or may not be known to the grand jury.</p> <p>In such case they may compel a witness to attend but can ex- ' amine him only upon such matters as are relevant and material to the subject of the injury.</p> <p>2. Same—Voluntary Appearance of Accused.</p> <p>If the grand jury have reason to believe that the evidence of the accused will explain away the charge made against him they may permit him to appear, provided he appears voluntarily, and be heard, but he must be informed, by the foreman, before he is sworn of the nature of the charge and that, if he is sworn and testifies in his own behalf, any statements or answers to questions which he may make may be used against him on his trial if he is indicted.</p> <p>3. Same—Privilege of Witness.</p> <p>While a witness summoned before the grand jury is guilty of a criminal contempt if he refuses to be sworn or answer a relevant question, he may refuse where he states under oath that his answer may tend to convict him of a crime, but it should appear from the examination whether the question was relevant or material to the subject of inquiry in order that the court can determine whether the witness had properly or improperly claimed privilege.</p> <p>4. Same—Supplemental Inquiry by Grand Jury Hot Allowed.</p> <p>After an indictment has been found and has been presented to the court the grand jury cannot institute a new and independent inquiry to supplement or strengthen the testimony upon which the indictment was found.</p>

<p>Conspiracy op Members of Affiliated Labor Unions to Compel Their Employers to Comply with Their Demands—Legal and Illegal Methods and Threats'—Boycotting—A Demand that Materials be Purchased Only of Shops Approved by the Union is in Restraint of Trade—Construction op Penal Code Secs. 168, Sued. 5, 170—Demurrer to Indictment.</p> <p>While section 170 of the Penal Code declares that the orderly and peaceable assembling or co-operation of employees, in any trade, for the purpose of obtaining an advance in the rate of wages, is not a criminal conspiracy, they can not, to accomplish that object, co-óperate to use any of the means declared to be illegal by subdivision 5 of section 168 of the Penal Code, such as “To prevent another from exersising a lawful trade or calling, or doing any other lawful act by force, threats or intimidation” nor can they “commit any act injurious * * to trade or commerce. ”</p> <p>An indictment drawn under said subdivision 5, which charges that the defendants, officers of the United Brotherhood of Carpenters and Joiners of America and also members of local unions in Rochester, embodied in a district union having severe penalties for . disobedience to its mandates and comprising the greater part of the workmen employed in said city in carpenter and joiner work both in building-material factories and in outside construction work, conspiring among themselves, and with others unknown, inaugurated strikes and boycotts in the wood-working and carpenter trades in said city, threatened to drive non-union workmen out of business and make it impossible for them to obtain work in the city unless they joined the union, and to compel acceptance cf their demands threatened to boycott wood-working material manufacturers and ruin their trade unless they made an advance in wages and limited the number of apprentices, declared the output and shops of non-complying manufacturers “unfair,” inaugurated strikes where their material was used and posted “unfair” notices on the material itself where it was used, threatened to boycott carpenter contractors for the erection of buildings unless they agreed in writing to purchase materials only of factories approved by the union and cancel their outstanding contracts made with “unfair” factories, and which further alleges that the threats were executed with the result that building enterprises were paralyzed in said city and many persons driven out of employment and out of business, is not demurrable.</p> <p>Members of affiliated unions have a right to declare their unwillingness to work in the same shop or on the same job with a nonunion man and, if he is discharged by their threat to strike or cannot get work in a shop or on a job where they are employed, no crime has been committed, but where the)*, for any purpose, endeavor to compel a man to join the union by threats, in case of his refusal, not only not to work with him but that, in order to prevent him from getting work at his trade, they will employ all the power of the union to turn custom away from, and promote hostility towards, any one who dares to employ him, and this as a punishment for giving him work, the co-operating members of the union are guilty of a conspiracy to prevent another from exercising his lawful trade within Penal Code, § 168, subd. 5. '</p> <p>Threats against the manufacturers to withdraw all union men and end all business relations, unless the demands of the union are complied with, constitute no crime, but where the manufacturers are threatened with business annihilation by the malicious use of the boycott, compelling would-be customers to desist from purchasing from fear, induced by threats, that if they do purchase the full power of the union will be used against them to their destruction, the action of the members of the union co-operating therein is illegal.</p> <p>The agreement, sought to be exacted from the carpenter contractors, that they must agree to purchase materials only from factories approved by the union, is against public policy and harmful to the community because it restrains competition and freedom of trade in articles of common necessity.</p> <p>Demurrer to indictment charging conspiracy.</p>

<p>1. Indictment—Conspiracy to Defraud—Code Crim. Pro. Sec. 276.</p> <p>Conspiracy is an offense known to the common law, and where an indictment specifically charges that crime, the indictment is not demurrable under Code Crim. Pro. Sec. 276, requiring an indictment to. name the crime.</p> <p>2. Same—Description of Crime.</p> <p>An indictment which alleges that the defendants, individually and as officers of both the companies hereinafter named, conspired, to cheat and defraud the Rathbun-Sawyer Co. by drawing drafts and checks against it in their favor or in favor of some or all or each of them, and in favor of the Gulf Milling Co. representing indebtedness due from the said Rathbun-Sawyer Co., and procured the checks and drafts to be cashed, when, as the defendant knew, no such indebtedness existed, and that thereby the Rathbun-Sawyer Co. was defrauded of $20,000 which the defendants appropriated to their own use or to the use of persons to the jury unknown, other than the true owners thereof, is sufficient, as the unlawful agreement is alleged, as well as the doing of an overt act in furtherance of, and to carry out the agreement.</p> <p>3. Same.</p> <p>The indictment need not set' out checks and drafts. It does not charge more than one crime merely because, after stating the crime, it alleges the acts done to effectuate the object of the conspiracy.</p> <p>4, Same.</p> <p>As the people are required by law to establish, not only the conspiracy, but also to charge and prove the commission, by one or more of the conspirators, of some overt act to effect the object of the conspiracy, the allegation, in the indictment, of the overt act that the defendants appropriated $20,000—not sufficiently alleged in the indictment, as appears therefrom, to set forth the felony of grand larceny and procure a conviction for that crime—cannot be permitted to effect a merger of the conspiracy in the felony and thereby prevent a prosecution for the conspiracy.</p>

<p>Indictment—Set Aside Where Found on Illegal and Insufficient Evidence—Code Crim.. Pro. Secs. 313, 256.</p> <p>The provisions of Code Crim. Pro. Section 313 providing that an indictment must be set aside for certain defects are not exclusive, and as the grand jury can receive none but legal evidence under section 256, an indictment may be set aside where it has been found without evidence, or upon illegal and incompetent testimony.</p>

<p>Trial—When the Admission of Erroneous Evidence is not Fatal Error.</p> <p>The admission, upon the part of the People upon a trial for murder in the first degree, of clearly illegal evidence will not justify issue of a certificate of reasonable doubt whether a conviction of murder in the second degree should stand where on all the evidence the guilt of the accused is clear and during the trial and on the day after the illegal testimony was admitted by the trial judge he struck it out and instructed the jury to disregard it—it should be assumed that they did as instructed.</p>

<p>1. New York Spbciai, Sessions—Formal Written Information of A Misdemeanor not Required In.</p> <p>Where a person arrested with or without a warrant, is held by a magistrate of the city of New York for trial at the Court of Special Sessions upon a charge of misdemeanor, it is not necessary that a formal written information or any other pleading in the nature of an indictment shall be filed or returned to the Court of Special Sessions.</p> <p>2. Same—Return of Magistrate.</p> <p>It is only necessary for the magistrate to return “the warrant, if any, the depositions, the statement of the defendant if he has made one, and all undertakings of bail, or for the appearance of witnesses taken by him” and even this duty is qualified by subdivision 6 of section 204 of the Code of Criminal Procedure, exempting such magistrate from reducing depositions to writing unless the district attorney shall so elect.</p> <p>3.- Same.</p> <p>A demurrer will not lie to an affidavit made in the Court of Special Sessions of Hew York, which states that the charge against the defendant is that he did unlawfully and wilfully sell or give away one package of cigars to known as “Jack Rose Little Cigars” to one Edward Gluck, a male child actually and apparently under the age of sixteen years, to wit, of the age of eleven years, in violation of section 290 of the Penal Code of the state of Hew York.”</p> <p>NOTE:—This case was affirmed by the Appellate Division but has-been superseded by sections 741-746 of the Code of Criminal Procedure, as amended by L. 1904 Chap."563, taking effect Sept. 1, 1904. By this-new enactment, it is directed that formal informations, substantially in the form of indictments, shall be used in the Courts of Special Sessions in the City of Hew York.</p> <p>R. C. T.</p>