Volume 21 — New York Criminal Reports

<p>Blackmail.</p> <p>In a prosecution for sending threatening letters in violation of section 558 of the Penal Code, it appeared that the complaining witness had received two letters from a society called the “ Black Hand,” demanding payment of $500, in default of which he and his family would be destroyed. The complaining witness testified that the defendant had called on him and demanded the payment of the money in compliance with the letters. On the whole evidence Held, that a judgment of conviction should be affirmed.</p>

Appeal by the defendant, William Dixon, from a judgment of the County Court of Onondaga county, rendered on the 4th day of May, 1906, convicting him of the crime of burglary in the third degree, and also from an order bearing date the 4th day of June, 1906, and entered in the office of the clerk of the county of Onondaga denying the defendant’s motion for a new trial.

Appeal by the defendant, Giovanni Bonifacio, from a judgment of the Supreme Court, rendered on the 16th day of November, 1904, at the Montgomery Trial Term, convicting him of the crime of murder in the second degree, and also from an order entered in the office of the clerk of the county of Montgomery on the 9th day of November, 1905, denying the defendant’s motion for a new trial made upon the minutes.

<p>Jurisdiction—Trial—Sentence.</p> <p>The court in a criminal action is without power to revoke a sentence lawfully imposed and partly executed by the commencement of defendant’s imprisonment thereunder for the purpose of imposing a heavier sentence.</p>

<p>Motion under section 410 of the Criminal Code to advise jury to acquit defendant.</p>

<p>Evidence—Filling, etc., Marked Siphons—Laws 1896 Chap. 933 § 2.</p> <p>Where it was proved that one who was neither a j unk dealer nor a dealer in second-hand articles, but whose business it was to fill siphons with aerated water for dealers, had in his possession a box containing six siphons marked and distinguished with the name marks and devices of a corporation of which a description had been filed and published as required by Laws 1896, eh. 933, which box stood near the filling machine but the siphons in which it was not shown were filled by him, such proof was not sufficient to convict him of having filled, used, bought, sold, given, taken or otherwise disposed of or trafficked in said siphons in contravention of the statute.</p>

<p>Motion to dismiss indictment.</p>

<p>(1) . Abortion—Evidence—Dying Declarations.</p> <p>Dying declarations are only admissible against the defendant in a criminal action when the person making them was under the belief of impending death and had abandoned hope of recovery. Before such declarations become admissible both conditions of mind must be established.</p> <p>(2) . Same.</p> <p>An abandonment of hope of recovery by the victim of a criminal abortion is not established when, not being apprised of her dangerous condition or that she was about to be operated upon, she stated in answer to a question by the coroner that although she believed she was about to die, she hoped that God would let her recover, and her dying declarations are not admissible.</p> <p>(3) . Same—Code Civ. Proc. § 834.</p> <p>The privilege of physicians under § 834 of the Code of Civil Procedure does not apply to criminal prosecutions for causing death of the patient, and a physician may state what he learned as to the physical condition of the patient by examination.</p> <p>(4) . Same—Laws 1905 Oh. 331.</p> <p>Chapter 331 of the Laws of 1905, amending said § by providing that the privilege shall not apply where the patient is a child under sixteen years of age and the information acquired indicates that the patient is a victim of a crime, must be construed to apply only to a living patient under sixteen years of age upon whom a crime is committed, and has no application to a person whose death is the subject of a criminal prosecution.</p>

Motion to dismiss the indictment herein upon the grounds: First, that the alleged crime is barred by the Statute of Limitations; and, second, that improper evidence was received before the grand jury.

<p>Jurisdiction—Particular Courts—Courts of Special Sessions.</p> <p>A Court of Special Sessions is without jurisdiction to impose a fine of more than fifty dollars for operating an automohile upon a public highway at a rate of speed greater than one mile in three minutes.</p> <p>Upon appeal from the judgment of conviction, in such a case, where a fine of one hundred dollars was imposed, the County Court cannot remit the record to the court below for the correction of the error by the imposition of a fine within the jurisdiction of the court but must reverse the judgment and declare it null and void.</p>