Volume 2 — New York Criminal Reports

Appeal by the relator, David A. Paul, from an order of October 13, 1883, affirming an order of Hon. George C. Barrett, made at Special Term, Chambers, October 12, 1883, at Hew York, dismissing wafts of habeas corpus and certiorari, and remanding the relator to the custody of the keeper of the Third District Police Court Prison in said city.

Motion by the defendant Ira 0. Bellows for a bill of particulars and a copy of the minutes of the grand jury. The defendant who was under three indictments, found September 18, and October 10, 1883, for embezzlement and grand larceny alleged to have been committed April 7, September 20, and November 6, 1882, while a clerk in the' bureau of the Water Register in the department of Public Works, in the city of New York, made this motion on grounds set forth in the opinion.

<p>When Criminal Action commenced.—Dismissal of Indictments FOUND BEFORE CODE CRIMINAL PROCEDURE.</p> <p>A criminal action is commenced when the indictment is filed and becomes a record of the court.</p> <p>All indictments filed previous to the time of taking effect of the Code of Criminal Procedure, must be governed by the previously existing practice and procedure.</p> <p>Such an indictment cannot be dismissed by the court upon the motion of defendant under § 671 of that Code.</p>

J. W. Crane, County Judge, presiding. Defendant was indicted in January, 1881, for the crime of grand larceny in having been guilty of… Held: erroneous, as the instruction authorized the jury'to convict, even though the steer had been killed as an act of malicious mischief. People v. Murphy, 47 Cal. 103. A taking of property for the purpose of destroying it does not constitute larceny. Rex v. Crump, 1 C. & P. 658. An offense for such purpose would be malicious mischief.

<p>Trial op Prisoner on Several Indictments.</p> <p>It is not wise or just, where there are several indictments against the same defendant, for the prosecution to allow years to.elapse between the trials on each.</p> <p>They should all be tried when the witnesses are alive and accessible, and when the testimony for both sides is readily to be had.</p> <p>The prisoner was tried, convicted and sentenced to five years imprisonment, the maximum term, on an indictment for forgery in the third degree. Upon the expiration of his imprisonment the prosecution sought to try him on two other indictments found at the same time as the one on which he had been convicted, for other forgeries. Held, that defendant under these circumstances should be discharged from custody on his own recognizance.</p>

The complainant and another witness, testified that defendant and one McDermott, with a female companion, about three o’clock on the morning of December 27, 1882, went to the liquor store of complainant, who refused to admit them, as his store was closed, he also informing them that he did not allow women in his place; that they went away, but shortly after-wards returned, and while complainant was in the act of locking the door, defendant pushed it open, and after calling…

Co. Crim. Pro. § 718, subd. 5, is unconstitutional because it is in conflict with the provisions of amended art. 6 of the U. S. Constitution, that the accused “ be informed of the nature and cause of the accusation.” United States v. Hills, 7 Pet. 142; United States v. Cruikshank, 92 U. S. 542, 555, 556.

Motion to discharge the defendant Thomas Boyle, who is in custody in default of giving an order taking to keep the peace.

Appeal by the defendant, Joseph Bork, from a judgment of the Court of Oyer and Terminer, of Erie County, May 3, 1881, convicting defendant, on an indictment found November 12, 1877, of embezzlement and conversion of property and funds of the city of Buffalo, and also from an order made April 9, 1883, denying a motion for the arrest of said judgment.

Application by William McDonald to be discharged from imprisonment in the common jail of Albany county, in which he is confined by the sheriff of such county,' under a commitynent -.of. the senate of the State of New York, which recites a .judgment of such body holding him to be in contempt for refusing ras a witness to' answer questions propounded by its standing committee upon cities, and sentencing him to imprisonment therefor.

<p>Indictment for Murder.</p> <p>An indictment containing varying allegations in its different counts as to the manner and means of the commission of the crime, but which shows upon its face that those counts relate to but one and the same transaction, is good.</p> <p>Two or more separate and distinct felonies may be alleged in different counts in the same indictment, provided they arise out of the same transaction, which they describe in various ways to meet the possible evidence in the case.</p> <p>Killing effected by a person engaged in the commission of a felony is murder in the first degree, notwithstanding that the act which produced death was not intended to kill.</p>

Appeal by defendant, Austin Persons, from a judgment of affirmance of conviction of assault and battery, at a Court of Sessions of. Ontario County, Hon. Wm. H. Smith, County Judge, presiding, April 11, 1883. The alleged offense was committed on May 18, 1881, and the defendant was convicted by a police justice of Canandaigua, August 7, 1881.

Appeal by defendant from an order made by Justice Vann, refusing to discharge the defendant from imprisonment and remanding him to the Onondaga County penitentiary. On December 10,1879, in the Onondaga Court of Sessions, defendant was indicted for the crime of assault with a deadly weapon, and upon being arraigned on December 10, 1879, he pleaded not guilty, and on the 30th day of the same month, in the same term, he withdrew his plea of not guilty, and entered one of guilty.

Writ of error to Court of Sessions of Orleans county to ■review a judgment of 15th March, 1882, convicting defendant Bansom Hall of the offense of resisting an officer in the execution of process. The offense was committed 22d April, 1881, and the indictment found 8th June, 1881. The facts fully appear in the opinions.

<p>Power of the Senate to Punish Refusal to Answer Questions, is J-udioial, not Legislative.—1 R. S. m. p. 154, § 3, subd. 4, Unconstitutional.—Witness in a Legislative Inquiry has Right to Counsel.— Code Civ. Pro. § 2032, subd. 3.</p> <p>Except when engaged in the judicial functions authorized by the Constitution, the Senate of this State has no power to punish as for a contempt, a refusal of a witness to answer a question. This power of the Senate is only such as is given to it by the Constitution of this State. It is not derived or inherited from the privileges of the' English parliament. Punishing, as for a contempt, such a refusal to answer, is the exercise of a judicial power.</p> <p>The provisions of 1 R. S. m. p. 154 § 3, subd. 4, giving to the Senate power to imprison a witness refusing to answer, is unconstitutional so far as the same relate to a legislative inquiry. T.he grant of judicial powers to the courts is an implied prohibition of their exercise by the legislature except as authorized by the Constitution. In cases where the Senate can imprison for refusal to answer, the courts have power to examine whether that power is lawfully exercised.</p> <p>The provisions of the Code of Civil Procedure, § 2032, subd. 3, directing that prisoners brought up on habeas corpus shall be remanded to custody in certain cases, apply only to criminal contempts committed before courts of record.</p> <p>A witness in an inquiry before a legislative committee has a right in an orderly manner to take advice of counsel as to questions affecting him or his business, and when such right is refused, to withdraw.</p> <p>Nor can such a witness be compelled to answer impertinent or irrelevant questions.</p>

<p>Writ of error to review the judgment of the Court of General Sessions, of the county of New York, by which the defendant was convicted of the crime of murder in the second degree, and sentenced to imprisonment in the state prison for life.</p> <p>The plaintiff in error, John Daly, with Francis McCormack, John Daniels, James Lynch and James Dougherty, were jointly indicted at the March term of the court of General Sessions of the Peace, in and for the city and county of New York, in the year 1877, for the crime of murder in the first degree, to wit, the killing of one Francis J. Reilly. The killing was charged in said indictment to have been done in several ways, viz. : in the first count, by a knife ; in the second count, by a stone; in the third count, by a stick; and in the fourth count, by kicking, pushing, striking, &c.</p> <p>Thereafter, and on April 2, 1877, Daly was arraigned upon said indictment, and pleaded not guilty, and on April 27, 1877, he was arraigned for trial before Hon." Henry A. Gilder-sleeve, one of the justices of said court, and a petit jury, and a trial upon said indictment was had on said day, and said Daly was convicted of murder in the second degree, and sentenced by said justice to the state prison at hard labor for the term of his natural life.</p> <p>The evidence taken upon the trial was, in substance, as follows :</p> <p>Edward Reilly testified on behalf of the people : On Saturday evening, March 3, my brother, the deceased, and myself, left our house, No. 6 Ridge street, together, and went to Lewis street, and walked to Eleventh street. I took a car and came home. I again met my brother at corner of Lewis and Riving-ton streets; he was with James McDonnell. We went to Kopp’s liquor store, corner of Cannon and Rivington streets. This was about 7.20 p. m. We went back to Lewis and Rivington streets. This was ten minutes to eight p. at. I left them in Rivington street, and took Belt Line car to Tenth avenue. I next saw my brother in Tenth street. This was 11.30 p. m., or twenty minutes to 12 p. m. I joined him, and we went down through Avenue D to Columbia street, and had three or four drinks, and went to a wake in Bivington street, near Cannon. We were coming from the wake; we met Daly, Dorev Ware and Daniels. I invited them to have a drink, and we all went to the lager beer saloon, corner of Cannon and Bivington streets, and had a drink. We then went to Burns’ place, corner of Lewis and Bivington streets, and all had a drink. Then Daly, Dorey Ware, Daniels and Dougherty, and my brother went outside, and when I went out I saw Daly and my brother in á scuffle. I tried to separate them; then a police officer came, and we all ran away. This was about twelve o’clock.</p> <p>William Kopp testified on behalf of the people: I kept a lager beer saloon at 320 Stanton street, corner of Goerck and Stanton. On the night of March 4, a moonlight night, I was looking out of my window on Stanton street, and heard some mussing-up the next block on Stanton street! I closed up my store and went up-stairs, and opened the window, and looked out to see what was going on. They all came down Stanton street, and then the fight began opposite my window. I saw Frank McCormack, Daly, Lynch, Daniels and Dougherty there. I could not see deceased, as they'were all around him. The first thing I saw was Dougherty striking deceased with a stick, which knocked deceased down. Lynch and Daniels had a stone each. Lynch struck deceased with a stone. McCormack had a knife, and struck deceased with it in the back, some where around the shoulder. Daly had a knife and struck at deceased. I think Daly struck him in the back. The fight lasted about five, six or seven minutes, then somebody cried “ cheese it,” and the officer fired a club, and they all ran away. Two young men picked up deceased and brought him to the corner. After, they ran away. Lynch came back first, McCormack second, then two or three, others and Daly. McCormack said, “ I sliced, or slashed, him first.” Daly said, “Bo, I slashed him first.” Lynch said, “ I hit him.; did you see a big stone I had in my hand ? I hit him with it.”</p> <p>Officer Michael Booney testified on behalf of the people : I was going down Stanton street, and when I got to corner of Lewis I heard a scuffle in Goerck street; I ran down and got into the middle of the block; some one holloaed “ cheese it,” and the crowd scattered and ran in different directions. I saw Frank Reilly, deceased, bleeding from a wound on his head ; this was on the southeast corner opposite Kopp’s place. It was about one o’clock. I took him to the station house; the doorman dressed the wounds. He had a scalp wound over his forehead, and another on his face. Deceased remained in the station house about half an hour. His brother came and went away with him. I saw deceased again in the station house about three o’clock. He was sitting in a chair in his shirt sleeves waiting for a surgeon.</p> <p>Edward Reilly’s examination resumed: I next saw my brother in the station house. His face was covered with blood. The officer washed it, and we went away together. McDonnell joined us, and we went to Coleman’s, corner of Lewis and Stanton streets, and met John Daly. My brother and Daly got into a scuffle; neither spoke ; both clinched and fell upon the stoop at the corner of Lewis and Stanton streets. I tried to separate them, and the police officer came running down, and we all ran away in different directions.</p> <p>Officer O’Connor testified on behalf of the people: I arrested prisoner on March 5, and confronted him with deceased, who said, “ That’s the man that stabbed me.”</p> <p>Mary Reilly testified on behalf of the people: I am the mother of deceased; and witness identified clothes of deceased.</p> <p>Dr. Frank Newman testified on behalf of the people : I am a practicing physician. Attended deceased on Sunday evening, March 4. Found a stab wound in the back, close to the spine. Wound was superficial. Another of same character on shoulder-blade. Another on the side, of same nature. Also one scalp wound, back of the hair on the forehead. It was only through the scalp. Another in front a little larger. The bone was not injured. I found no other except contused bruises around the chest, but no bones were broken. The skin was grazed or rubbed off on his face. The wounds in the back, shoulder-blade and side were superficial and would not produce death. I cannot tell what was the cause of death. Excessive drinking would produce congestion. There was nothing in the character of the wounds I saw to suggest danger.</p> <p>Dr. Cushman testifies on behalf of the people: I am a deputy coroner. I made an autopsy of Francis Reilly, deceased. I found a lacerated wound in the forehead on the front of the bone, a little to the left. Also an abrasion on the face and nose, and all were of a superficial character. I found a scalp wound on the left of the spine, a stab wound over the left shoulder and collar bone, stab wound on the left side of the chest. All muscular wounds. When I opened the skull I found the brain contused. No bruises, but evidence of inflammation. The cause of death, in my opinion, was meningitis. I am not prepared to say, in this case, that meningitis is not produced by a fall. A wound or blow or any injury to any part of the head, say the top, may produce meningitis at the bottom by transmission of force to any part of the head.</p> <p>Witnesses were examined on behalf of defendant and their evidence tends to show an alibi as to the other defendants, and was introduced to impair the effect of testimony of people’s witnesses.</p> <p>—I. The whole case is on the appeal to be considered by this court res nova, and if the verdict be against the weight of evidence or against law, or if justice requires a new trial, then the-verdict should be set aside and a new trial ordered.. Laws 1855, ch. 337; O’Brien v. People, 36 N. Y. 276.</p> <p>II. The evidence did not justify a conviction of murder.. If plaintiff in error was guilty of any offense,, it was manslaughter in either the second or third degree. Wharton thus defines murder: “Murder is where a person of sound memory and discretion unlawfully kills any reasonable creature in being and in the peace of the commonwealth, with malice prepense or aforethought, either expressed or implied.” Vol. 2, 7th ed. § 938; 3 R. S. 6th ed. 928. Manslaughter in the second degree is the killing without a design to effect death in a heat of passion, but in a cruel and unusual manner. Manslaughter in the third degree is the killing without a design to effect death in the heat of passion, with a dangerous weapon. 3 R. S. 6th ed. 934. Wharton says: “ Manslaughter is the unlawful and felonious killing of another, without any malice either expressed or implied.” “ Manslaughter differs from murder in this, that though the act which occasioned the death be unlawful or likely to be attended with bodily mischief, yet the malice expressed or implied, which is the very essence of murder, is presumed to be wanting, and the act being imputed to the infirmity of human nature, the punishment is proportionately less.” “ Voluntary manslaughter is the unlawful killing of another without malice, on a sudden quarrel, or in the heat of passion. Where, upon a sudden quarrel, two persons fight, and one of them kills the other, this is voluntary manslaughter ; and so if they, upon such occasion, go out to fight in a field, for this is one continued act of passion. So also if a man be greatly provoked by any gross indignity, and immediately kills his aggressor, it is voluntary manslaughter, and not excusable ; homicide not being se defendendo, neither is it murder, for there is no previous malice. In these and such like cases, the law kindly appreciating the infirmities of human nature, extenuates the offense committed, and mercifully hesitates to put upon the same footing of guilt the cool deliberate act and the result of passion.” 2 Wharton Am. Cr. Law, 7th ed. §§ 930, 931, 938. See 1 Hale P. C. 453-456 ; 1 Hawkins P. C. 29 ; 3 Inst. 51; Commonwealth v. Lenox, 3 Brewst. 249; People v. Austin, 1 Park. Cr. 154; People v. Garrettson, 2 Wheeler Cr. 347; United States v. Travers, 2 Wheeler Cr. 503 ; Wharton on Hom. 186; 2 Bishop on Crim. Law, 7th ed. §§ 672-678 ; Rex v. Taylor, 5 Burr. 2793 ; State v. Rutherford, 1 Hawks. 457.</p> <p>The evidence in this case at bar established nothing but drunken brawls and want of malice; that the parties came together accidentally, fought and ran away. It was a street fight, and at most a killing during an affray, and under the authority above cited, plaintiff in error should have been convicted of manslaughter (second or third degree).</p> <p>“ The indulgence which the law extends to cases of this description is founded on the supposition that a state of sudden and violent exasperation is generated in the affray, so as to produce-a temporary suspension of reason, and that the transport of passion excludes the presumption of malice.” 2 Wharton Am. Cr. Law, 7th ed. § 937.</p> <p>There was no evidence upon the trial going to show at which scuffle the deceased received the injuries which might have produced the meningitis which deputy coroner Cushman testified caused the death. It is important for the court to consider this question, for the reason that the evidence shows that there were three fights in which the deceased and Daly (plaintiff in error) were.engaged in a scuffle, and in one of them James Dougherty was seen by the witness Kopp to strike deceased on the head with a stick, and in the last scuffle opposite Coleman’s place, Lewis and Stanton streets, both deceased and Daly fell upon the stoop. In support of the above theory, the following authorities sustain the declaration: Clark v. State, 8 Hump. 671; Short v. State, 7 Yerg. 513; Jacob v. State, 3 Hump. 493; Young v. State, 11 Id. 200 ; State v. Roberts, 1 Hawks, 349 ; Commonwealth v. Riley, Thacher Cr. Cas. 471; King v. Commonwealth, 2 Va. Cases 78; Pennsylvania v. Sleven, Addis. 279 ; Commonwealth v. Biron, 4 Dallas, 125; Commonwealth v. Webster, 5 Cush. 295; State v. Sellers, 2 Halst. 220.</p> <p>III. The evidence does not conclusively establish that the cause of death was violence upon the part of plaintiff in error, or any of the co-defendants.</p> <p>It will be seen that the defendant and his associates were all acting together, and in concert,' in the same common purpose, and all are alike responsible for' the result flowing from their actions.</p> <p>The conviction was predicated upon the old statute. 3 R. R. 6th ed. 928 § 5. The jury were justified in finding murder in the second degree. Keefe v. People, 40 N. Y. 348. The facts disclosed upon, the trial warranted the- verdict, .and the evidence is sufficient to justify the verdict of the jury, and all the elements that go to make out the crime of murder in the second degree were clearly proven, in fact a verdict of murder in the first degree would have been justifiable under the evidence. People v. Clark, 7 N. Y. 389; People v. Sullivan, Id. 396.</p>

The appellant was convicted at a court of Special Sessions of the Peace of the city and county of Hew York, of assault and battery, and sentenced to three months in the penitentiary. On February 1, 1884, the appellant was produced in court, in obedience to a writ of habeas corpus, issued by Honorable George 0. Barrett. The return showed that the appellant was held by virtue of a commitment, adjudging the appellant to have been convicted of assault and battery.

Joseph F. Babnaed presiding, convicting defendant of murder in the first degree, for the crime 'of killing one Bichard Comisky oh March 11, 1883. The act of killing, and by the means charged, was not controverted on the trial, but defendant interposed the defense of insanity. ' Further facts appear in the opinion.

Henry A. Moore, County Judge, presiding, convicting the defendant, Alexander Jefferson, of murder in the first degree. Between the hours of seven and eight on the evening of December 21,1882, Celestial Jefferson, a brother of the defendant, Henry Hicks, Juliette Jackson, Mrs. Emma Jackson and Anna Jackson, all colored, were congregated in a small room of the said Mrs. Emma Jackson’s house, situate at Buffalo avenue on St. Marks place, in the city of Brooklyn.

<p>Murder nr the First Degree.—Premeditation.</p> <p>Upon the trial of an indictment framed under the first subdivision of section 183 of the Penal Code, where the evidence shows a killing with a design to efiect death, but not deliberation and premeditation, the verdict cannot be anything more than murder in the second degree.</p> <p>The crime of murder in the first degree under such an indictment can only be shown by proof of some amount or kind of deliberation and premeditation antecedent to the act which intentionally effects the death, and of which the intent alone is not sufficient evidence.</p> <p>Voluntary intoxication may be considered upon the question of premeditation.</p>

Certiorari in the nature of a writ of error, founded on a bill of exceptions, to the Court of Sessions of Allegany county to review a trial and conviction of Iiiram York, the plaintiff in error, for false pretenses in obtaining moneys by way of deposit in the banking-house of York & Chamberlain, in the town of Wellsville, in said county of Allegany.

In October, 1883, the defendant August Muller was indicted, under § 317 of the Penal Code, in the city of New York, for selling a picture, to an agent of “ The Society for the Prevention of Vice,” which picture in the indictment, is designated as an “ indecent and obscene photograph, representing a nude female in a lewd, obscene, indecent, scandalous, and lascivious attitude and posture ;” and the indictment also charges him with having in his possession, with intent to…

Appeal by defendant from judgment of the County Court of Madison county. The defendant, Frank Van Vechten, was- convicted in a court of Special Sessions of assault and battery alleged to have been committed on the person of Eli Hibbard, about midnight, September 16, 1882, as 'the latter was about to enter the hotel kept by the defendant.

Appeal by defendant from judgment. The appellant, Stephen Raymond, was convicted of forgery in the first degree, second offense, in the court of General Sessions, city of New York, Recorder Smyth presiding, and was sentenced to be imprisoned in the state prison for and during his natural life.

<p>Warrant or Commitment.—“ Assault and Battery” is Assault in Third Degree.</p> <p>It is not necessary that in a warrant of commitment, the crime of which the prisoner was convicted, should be called by its technical name, provided the description of the act which constitutes the offense is clear and precise, and leaves no doubt of its exact character. Therefore a warrant of commitment which shows a conviction of “assault and battery ” is a sufficient statement of a conviction of an assault in the third degree.*</p>

Appeal on the part of the people from an order made herein by Hon. Frederick Smyth, sustaining the demurrer of defendant, Ellen E. Peek, to the indictment. Defendant was indicted in March, 1883, in the General Sessions of Hew York, of the offense of obtaining money by false pretenses, committed in April, 1878. ■ The indictment was in the common law form, beginning: “ City and County of Hew York, ss.

The appeal also brings up for review the judgment and order of said court overruling the defendant’s demurrer to the indictment ; also an order denying a motion in arrest of judgment, and an order denying a motion for new trial on the minutes.

E. A. Nash, County Judge, presiding with associates, dismissing an appeal from a judgment of a court of Special Sessions held in said county, charging the appellant with the cost of a criminal prosecution in the last mentioned court, in which said appellant was the prosecutor.

Writ of certiorari to Andrew Walsh, Esq., a police justice of the city of Brooklyn, to review the proceedings upon the dismissal of the complaint against one Conrad Scherer as a disorderly person,… Held: that if the wife left the husband’s house for any cause she could not sustain a proceeding for abandonment. The complaint was therefore dismissed and the present writ was taken out to review that decision.

<p>Demurrer to an indictment.</p> <p>The facts appear in the opinion.</p>

Motion made by the District Attorney upon the report of commissioners appointed under Code of Criminal Procedure, § 658, to examine one Wm. C. Rhinelander, as to his sanity, for an order suspending the trial of said Rhinelander until he shall become sane, and that said Rhinelander be committed by the sheriff to a state lunatic asylum. The facts fully appear in the opinion.

Appeal by Peter Jacobs, relator, from an order made by Hr. Justice Dohohue, Hay 15, 1884, dismissing writs of habeas, corpus and certiorari, and remanding relator to imprisonment.

Motion by defendant William Stokes for a new trial under § 465 subd. 6, 7, Code, of Crim. Pro. The defendant was indicted with one Martha Hovey for murder in the first degree, in poisoning his wife, on March 27, 1882. He pleaded not guilty, and was brought to trial at the June Oyer and Terminer, held in Jefferson county, Justice Merwin presiding.

<p>Indictment.—Perjury.—Evidence.—Corroboration.</p> <p>An indictment for perjury which charges that the false statements were made by defendant as a witness in a certain specified action brought “for a limited divorce," contains a sufficient statement of the issue involved in such action.</p> <p>Gaston v. People, 61 Barb. 35 distinguished, and criticised.</p> <p>It is sufficient under Code Grim. Proc. § 276, to charge in the indictment that the false oath was material on the trial of the issue on which it was taken, without showing particularly how it was material.</p> <p>If a person swears falsely in respect to any fact relevant to the issue being tried, he is guilty of perjury, although the case fails from defect of proof of another fact, and although the other fact alleged had no existence.</p> <p>In an action by the wife for a limited divorce, on the ground of abandonment, the husband, under Code Civ. Proc. § 1765, pleaded as matter of defense the adultery of the wife, committed at a certain time and place. The defendant in this action falsely testified, as a witness for the husband, that he had seen the wife, at said time and place, go with a man into a bed-house, or place where men can take women for sexual intercourse. Upon the trial of an indictment for perjury: Held, that said testimony related to a material question in the civil action, and was therefore perjury, and that the indictment setting it forth should be upheld, though it was not stated therein that the man in question was not the wife’s husband.</p> <p>The law does not exact positive proof of the falsity of the evidence claimed to be perjury, in addition to the testimony of the prosecuting witness, but there must be additional evidence strongly corroborative thereof.</p> <p>In this case, the accusing witness denied that she had ever been in a house of ill-fame, as testified by defendant. The evidence of other witnesses tended strongly to show that there was no such house within the limits described by the defendant at the time referred to by him. Held, sufficient corroboration.</p> <p>The whole of the issue presented by the indictment, the defense in the civil action and the prisoner’s testimony therein, confined the time of the wife’s visit to the bed-house to July 9, 1879. Held, that the court rightly confined the investigation of the jury to the question whether on that date there was such a house within the locality referred to.</p>

<p>Extbadition Psooeedings.—U. S. Constitution, Aet. 4, § 2, Sub. 3; U. S. Revised Statutes, § 5278.—Indict-ment.—Misnomee.</p> <p>The return to a writ of habeas corpus sued out by Otto A. Nubell, set forth that he was arrested and held upon a warrant issued by the Governor of this state, in conformity to a requisition of the Governor of the state of Illinois for the arrest and return to that state of O. A. Nubell, which warrant was annexed to the return, and recited that it had been represented by the Governor of the state of Illinois that O. A. Nubell there stood charged with the crime of conspiracy, committed in the county of Cook and state of Illinois ; that he had fled from justice in that state, and had taken refuge in the state of New York ; that the representations were accompanied by an indictment and affidavit whereby the said O. A. Nubell is charged with the said crime, and with having fled from said state and taken refuge in the state of New York, which were certified by the Governor of Illinois to be duly authenticated. The copy indictment, etc., was not produced, but remained in the custody of the executive. Relator demurred to the writ on the grounds that the indictment set forth no offense, and was fatally defective in that it was presented against Nubell by the initial letters only of his Christian names. The relator also alleged that his name was not O. A. Nubell.</p> <p>Held, that the return was sufficient ; that under the Constitution of the United States, art. 4, § 2, sub. 3, and U. S. Revised Statutes, § 5278, controlling extradition proceedings, such proceedings must be sustained when a criminal charge is shown to the executive of this state by a copy of the indictment certified to be anthenticated by the governor of the state from whence the person charged therein is shown to have fled into this state ; that in such a case the executive must act solely upon the facts so presented, and that neither it nor the courts have authority to examine into the charge, or the sufficiency of the indictment, or alleged irregularities therein. But, further held, that as relator, by his objections to the return, in effect raised the issue of identity, the order sustaining the warrant must provide for the determination of that question.</p> <p>People 0. Brady, 56 N. 7. 188, distinguished.</p> <p>An indictment is not necessarily inoperative or void, even at common law, because of its omission to designate the person charged by the full Christian name. He may be indicted by the initials of his Christian name, and legally convicted if he fail to raise the objection by plea in abatement, and it may be shown in answer to such plea that the accused was usually known by the name under which he was indicted.</p>

<p>Burglary.—Circumstantial Evidence.—Admissions and Declarations.—Testimony or Convict.—Custom.—Immaterial Errors.</p> <p>Upon the trial of an indictment for burglary, where it appeared, by the testimony of eye-witnesses, that the building in question was entered by violence; that the money-drawer and lock of the safe had been tampered with; that defendant was found in the mill, and was unable to give a satisfactory explanation of his presence there, Held, not a case, where the proof rested on circumstantial evidence, and therefore that it was not error to refuse to instruct the jury as to the rules of law applicable to such cases.</p> <p>About an hour after defendant was found on the building in question, a police officer called at the house of defendant’s mother, and was met by her at the front door, and told that defendant was within. She then went back into the kitchen, apparently to call her son, and on returning, said he had gone out of the back door. The officer then went into the kitchen, the mother trying to stop him, and there found the defendant concealed behind a door, about six feet from the spot where the above conversation was had. Held, that evidence of the false statement made by the mother was admissible, on the ground that the facts justified the following inferences : (1) That the false statement was made by defendant’s direction; (2) That defendant heard it, and should have spoken if he did not wish to be bound; (3) That the defendant and his mother were acting with a common purpose to enable defendant to escape, and the acts and declarations of the mother were therefore admissible against defendant.</p> <p>The design and effect of Code Civ. Proc., § 832, and Pen. Code, § 714, is to establish a uniform rule in regard to the testimony of convicts, and to permit the conviction for any crime to be proved; and whether it should affect the credibility of the witness is a question for the jury. Accordingly, held, competent to ask a witness if he had been convicted of the misdemeanor of drunkenness and disorderly conduct.</p> <p>Whether the testimony of a witness employed in the building in which the burglary was committed, to the effect that he was employed therein, and carried the key to a certain door, which it was his duty and custom to lock every night, is competent to show that the door was locked on the night in question, though the witness has no recollection of doing so on said night, guare.</p> <p>The admission of such evidence, even if erroneous, must be disregarded on appeal, under Code Crim. Proc. § 592, when the fact in question clearly appears by the uncontradicted testimony of other witnesses.</p>

<p>Imprisonment Under Void Judgment.</p> <p>A defendant imprisoned under a commitment which shows on its face that it was issued to enforce a judgment which the court under no circumstances could pronounce, will not be forced to appeal, but will be released on habeas corpus.</p> <p>The powers of courts of Special Sessions as to inflicting punishment are not enlarged by section 717 of the Code of Criminal Procedure. A fine not exceeding fifty dollars, or an imprisonment of six months, or both, is still the extent of the judgment which such courts can render.</p>

<p>Perjury—Corroboration Bequired.</p> <p>Upon the trial of defendant for perjury, in that he had falsely sworn in an action brought against him by one B., that he had paid to B. certain moneys, the non-payment was proved by B. To corroborate B. it was proven that certain receipts of B. produced on the trial of the main action by defendant to prove payment to B. were forgeries. Held, that the evidence as to the receipts did not sufficiently corroborate the single witness as to the perjury, to justify a conviction of that offense.</p>

Appeal by defendant Edgar Hustis from a judgment of the court of Sessions of Putnam county, convicting him of seduction under promise of marriage.

Appeal frem judgment convicting defendant of murder in the first degree. The defendant Franz Joseph Petmecky was indicted in October, 1883, in the Court of Oyer and Terminer of Cayuga county, for the murder of' Paulina Froitzheim, on June 1, 1883, at Auburn, U. Y., and in January, 1883, he was tried before Justice Dwight and a jury, found guilty, and sentenced to be hanged. The facts and exceptions appear in the opinions.

Appeal by defendant, George Eckert, from a judgment convicting him of the crime of seducing an unmarried female of previous chaste character, under promise of marriage. The defendant was indicted in the Court of Oyer and Terminer of Ulster county, November 24,1882, the indictment charging the commission of said crime on May 13, 1881.

Appeal, by defendant James S. Lyon, from a judgment of April 6, 1883, of the Court of Oyer and Terminer of Erie county, Hon. George Barker presiding, convicting defendant of receiving and converting certain moneys of the city of Buffalo, and from an order of the same court, of August 13, denying defendant’s motion for a new trial.

Appeal by defendant Julius A. Thompson, from a judgment of the General Term of the Supreme Court affirming a judgment of conviction for blackmail. The defendant was indicted at the Oyer and Terminer of Otsego county, September 15, 1883, for the crime of blackmailing, and he was tried and convicted in the Otsego Sessions before Hon. Samuel A. Bowen, County Judge, with associates, and a jury, and sentenced to the state prison at Auburn for one year.

Appeal by relator Peter Jacobs from an order of the General Term of the Supreme Court in the First Department, reversing an order made by Justice Donohue, May 15 1884, dismissing writs of habeas corpus and certiorari and remandl ing relator to imprisonment. The facts appear in the opinion. For the briefs of counsel see report of this case at General Term, ante, p. 346.

Writ of error to the Court of Sessions of Oneida county, to review the trial and conviction of the plaintiff in error Frederick C. Fadner of forgery. The plaintiff in error was tried and convicted in the Oneida county Court of Sessions, Hon. H. B. Sutton, County Judge, presiding, with associates, and sentenced to state prison for the period of seven years and six months. The indictment was found in January, 1881, and contained four counts.