Volume 20 — New York Criminal Reports

<p>(1). Grand Larceny—Second Degree—Obtaining Monet on False Pretenses—Penal Code §§ 528, 531—Evidence.</p> <p>Where a defendant is charged with obtaining money from persons intending to take passage on a steamship by falsely representing that he was the agent with whom they had corresponded, and with whom they had desired to deal, it is not error to exclude evidence showing that after having delivered tickets of a less value than those paid for, the persons whom he defrauded would have been willing to accept a return of the overcharge.</p> <p><2). Same.</p> <p>Nor was it error to exclude evidence as to who paid the board of a complaining witness when the fact does not bear on his credulity.</p> <p>(3). Same.</p> <p>The letter written by the complaining witness to the agent with whom he intended to deal, inclosing a part of the passage money, and evidence that said agent used cards similar to those used by the defendant who impersonated him are admissible.</p>

<p>(1.) Liquor Tax Law—Slot Machine.</p> <p>A saloon keeper who maintains a slot machine which returns to every one depositing a nickel therein a check marked five cents or a larger amount, which checks he accepts for liquor and cigars, is guilty of permitting gambling in his saloon—and his certificate will be revoked;</p> <p>(2). Same.</p> <p>Although the player cannot lose, it is gaming because he is led to play on the chance of drawing a check of greater value than the-money deposited.</p>

Appeal by the defendants, William B. Jackson and another, from an order of the Supreme Court, made at the Erie Special Term, bearing date the 11th day of May, 1906, and entered in the office of the clerk of the county of Erie.

<p>(1) . Constitutional Law—Indeterminate Sentence—Penal Code § 687a.</p> <p>Chap. 425, Laws 1901, transferring to the Penal Code the previous statute which allowed an indeterminate sentence in the discretion of the court and making such indeterminate sentence compulsory under certain conditions, is not ex post facto as to a crime committed when the prior statute was in force, as it was the Intention of the Legislature not to repeal hut simply to transfer . the statute to the Penal Code.</p> <p>(2) . Same.</p> <p>A defendant who, hy appeal, has so changed the date of the expiration of his sentence that it terminates in a winter month, contrary to the statute, cannot complain if the original sentence terminated during the months allowed by statute.</p>

<p>(1) . Liquor Tax Law—Sale Without a License—Trial—Charge of Judge.</p> <p>Where defendant admits that he had no license for selling liquors, it is error for the trial judge to call to the attention of the jury the fact that the town voted against the sale of liquor as it had no bearing upon the question as to whether sales were-actually made by the defendant.</p> <p>(2) . Same.</p> <p>It is error for the Court to characterize the defendant’s witnesses as “ vicious, precocious, offscouring of the street.”</p> <p>(3) . Same.</p> <p>When defendant admits a previous conviction for violating the Liquor Tax Law it is error to charge that the jury may consider the circumstance in determining whether having violated it once he would not keep on violating it. The prior conviction, though admissible upon the credibility of the defendant, raises no presumption that he would repeat the offense.</p> <p>(4) . Same—Code Grim. Pro. § 542.</p> <p>The above errors taken collectively demand a reversal of a judgment of conviction in spite of the provisions of section 542 of the Code of Criminal Procedure requiring technical errors to be disregarded.</p>

<p>(1) . Indictment—Liquob Tax Law, Sec. 31.</p> <p>An indictment should charge, plainly, concisely and affirmatively the facts constituting the crime. It is not enough to charge them incidentally or by way of description; or obscurely as subordinate facts.</p> <p>(2) . Same.</p> <p>An indictment which charges that on a certain Sunday the defendant admitted to the room adjoining that wherein liquors were sold and kept for sale by him certain persons named and divers other persons unknown, not members of defendant’s family nor his servants, said adjoining room having an entrance into the other which was open and unlocked, fails to state facts that constitute a crime.</p> <p>(3) . Same.</p> <p>Such indictment does not charge the defendant with having admitted persons to a room where liquors were sold or kept for sale, nor does it plainly charge him with having opened or unlocked a door or entrance to such room, as required by Sec. 31 sub. 9 of the Liquor Tax Law.</p>

<p>Trial—Court of General Sessions—Rights to Inspect Minutes of Grand Jury.</p> <p>A person indicted for a crime will be permitted in the Court of General Sessions to inspect the minutes of the grand jury when necessary to enable him to determine whether the indictment was found, indorsed and presented as prescribed by law, or whether a person was present during the session of the grand jury contrary to law, or whether the defendant’s constitutional rights were invaded by the action of the grand jury in finding the indictment without evidence or upon illegal and incompetent testimony.</p>