Volume 19 — New York Criminal Reports

<p>1. Children—Presumption as to Child Between Seven and Twelve—.</p> <p>Plea of Guilty Not Taken as Affirmative Proof—Penal Code, Seo. 19.</p> <p>A plea of guilty will not take the place of affirmative proof required to overcome the presumption that a child between seven and twelve years of age is incapable of crime.</p> <p>2. Same—Statement by Magistrate Unaccompanied by Evidence.</p> <p>A statement in the return on appeal from a judgment of a child be- . tween seven and twelve that “ no evidence was t.aken as to the defendant’s capacity to commit the crime charged, for the reason that from their appearance and my conversation with them and their mothers in court they had sufficient capacity to understand the act charged and its wrongfülness,” is not sufficient to sustain conviction, as in the absence of accompanying evidence the court will disregard the conclusion of the court below.</p>

<p>Appeal—Laches in Bringing, Will Justify Dismissal—Code Crim. Pro., Sec. 759.</p> <p>Where a notice of 'appeal from a judgment of conviction rendered by the magistrates of the city of New York is not given ten days before the next term as prescribed by section 759 of the Code of Criminal Procedure, the appeal will be dismissed unless the appellant shows sufficient reason for the neglect and thus brings himself within the concluding clause of section 760.</p>

<p>Motion to revoke and cancel a liquor tax certificate.</p>

Appeal by the defendant, Harvey D. Montgomery, from so much of an order of the Supreme Court, made at the Otsego Trial Term and entered in the office of the clerk of the county of Otsego on the 7th day of May, 1904, as provides “that no sum or amount whatever be paid to the said (defendant’s) counsel for the services rendered by them on the said second trial on the ground that there is no authority therefor.” The defendant was tried for the crime of murder in the first…

Appeal by the defendant, Carey Green, from a judgment of the County Court of Otsego county in favor of the defendant, bearing date the 31st day of December, 1903, and entered in the office of the clerk of the county of Otsego, upon the verdict of a jury convicting the defendant of the crime of rape in the first degree.

<p>1. Bribery of Public Officer—Indictment—Coroner.</p> <p>A public official cannot be convicted of bribery for asking money to-influence his action which is not official, and for which he has no authority in law to perform, and an indictment charging a public official with bribery is defective if it does not allege that he had jurisdiction to inquire into the cause of death and was in the exercise of his official functions relating thereto.</p> <p>2. Same.</p> <p>A coroner of the city of New York has no jurisdiction to inquire into the cause of death of a person killed in New Jersey, whose body was never in the State of New York, and, therefore, could not, in law, ask a bribe to influence his official action.</p> <p>3. Same.</p> <p>Three things must concur to establish the crime of bribing a public officer. (1) The public office; (2) the bribe; (3) the official proceeding to be influenced. If any of these essentials be absent, the crime cannot be completed.</p>

<p>Demurrer to an indictment. The opinion states the case.</p>

<p>(Unreported.)</p> <p>Indeterminate Sentence—When Crime Committed After April 6, 1903.</p> <p>Where a crime is committed after April 6, 1903, and after L. 1903, chap. 137 had taken effect, the prisoner may properly receive such a minimum term, not less than one year, as the trial judge thinks proper.</p>

<p>Forgery—A Letter of Introduction Signed in the Name of a Third Person—Is a Forgery Under Surd. 3, Penal Code, Sec. 514, Not at Common Law—Neither Injury to the Person Whose Name is Signed Nor Intent to Defraud Need be Alleged.</p> <p>An indictment alleged that the defendant did feloniously utter a certain false and forged letter set out in the opinion.</p> <p>It also averred that the defendant knew said letter to be false and that by the uttering thereof, the sentiments, opinions, conduct and rights of the said John B. Van Every were misrepresented.</p> <p>Held, that in order to be the subject of a forgery at common law, a, writing must be false and in such form as to be the means of defrauding another, and which, if genuine, would operate as the foundation of another’s liability;</p> <p>That • the indictment could not be sustained under the common law, as the letter in question contained but one of the common law! essentials, to wit, falsity, and as such letter could not be construed as a means by which another could be defrauded or by which a pecuniary liability could be created;</p> <p>That the indictment,' however, was valid under subdivision 3 of section 514 of the Penal Code.</p> <p>That, under the subdivision in question, it was not necessary that it should be either alleged or proved that the person whose name was forged had been injured or that the defendant was guilty of an intent to defraud.</p>

Application by defendant for a certificate of reasonable doubt pending his appeal to the Appellate Division, First Department, from a judgment of conviction for murder in the first degree.

<p>1. Hew Trial—Verdict os Insueeicient Evidence.</p> <p>Independent of any statute the trial court has inherent power to grant a new trial in a criminal case if the defendant has been in any way deprived of his constitutional right to a fair trial.</p> <p>2. Same.</p> <p>"Upon the trial of an indictment for burglary, third degree, and grand larceny, first degree, in breaking into and stealing from a bank in Gilbertsville, Otsego county, the evidence showed, beyond question, that the crime was committed by five men, but the only evidence tending to connect defendant therewith was the testimony of a witness that he was able to recognize defendant as the man who came from the bank at the time of the crime and stood about eight feet from him, the side and front of whose face he then saw, .while he was being gagged and bound by three of the burglars; that afterward at police headquarters in Hew York city he identified him among eight strangers standing in a line; that from his general appearance as he saw him on the night of the crime he was able to identify him; that he was as positive in his identification as he was of any one; that when he identified in Hew York the defendant looked like the man he saw in Gilbertsville, or was like him; that he could not be positive in his identification but was as positive that the defendant was the man he saw in Gilbertsville as he was of anything, ■ but his testimony left it in doubt as to which it was—whether defendant looked like the man he saw in Gilbertsville or was like him; he further testified that on the night of the burglary lie observed that upon defendant’s coat slipping from his shoulder he shrugged it up and that witness observed that he shrugged up his shoulders in the same manner on the train coming from Hew York. Defendant, after testifying that on the night in question he was in the city of Hew York, called three witnesses who testified that he was in Hew York city at a time so near the time in question that, if they were not mistaken and testified truthfully, the defendant could not have been at the scene of the burglary at the time alleged, but, upon the examination of these witnesses, circumstances reflecting upon- their character and credibility and the probable truth of their testimony were brought out and the defendant was convicted.</p> <p>Held, that as the testimony o'f the witness as to the identification of the defendant could not be taken as an expression of a positive ox-even decided or firm opinion or belief that the defendant was the man, and the court had no means of knowing how positive the witness was of any thing or of any person, and, as the witness seemed doubtful whether defendant was the man he saw or only resembled him, and there being no evidence to sustain the testimony of the witness and no circumstances pointing to defendant as the guilty man, defendant’s motion for a new trial, upon the ground that the verdict was contrary to law and the weight of evidence, should be granted upon the principle that no man should be deprived of his liberty except upon evidence sufficient to establish his guilt of the ci-ime charged.</p> <p>3. Jury.</p> <p>If the defendant shrugged his shoulder during the trial in the manner described by the witness and the act was observed by the jury, there was no impropriety in their discussing the fact in the jury room.</p>