Volume 22 — New York Criminal Reports

<p>(1) . Grand Jury—Election Law—Constitution—Presence of Attorney General.</p> <p>AVhere a grand jury is investigating the question of an alleged offence arising under the Election Law of the State which has been brought to its attention hy the Attorney General acting under the direction of the Governor, the deputy attorney general has the right to be present in the grand jury room while evidence is being received and his presence does not violate any constitutional right of the defendant against whom an - indictment is found, nor form a ground for the dismissal of the indictments.</p> <p>(2) . Same—Consideration of Several Offences At Once.</p> <p>AVhere charges for the commission of several offences which belong to the same general class are being investigated by the grand jury, they may be considered at the same time without that formal separation which would entail delay in consequence of the necessity for the repetition of evidence.</p> <p>,(3). Same—Indictment of AVitness AVho Appeared Voluntarily.</p> <p>AVhere a defendant appeared voluntarily before a grand jury while they were investigating a charge that he had committed a crime, for the purpose of submitting to the grand jury an anonymous letter which he had received, and he was not interrogated respecting the offence with which he was charged and did not say anything about it, an indictment thereafter found by the grand jury is not vitiated by such voluntary appearance of the defendant.</p> <p>(4). Election Law—Abetting Illegal Registration—Accomplice— Testimony Must Be Corroborated.</p> <p>AVhere a person is charged with knowingly aiding, assisting and abetting an act of illegal registration for the purpose of voting, the person who conceived the purpose of committing the crime of illegally registering and suggested to the defendant the crime of aiding, assisting and abetting him to carry out such purpose is to be deemed an accomplice of the defendant with respect to the crime charged against him; and the defendant cannot be convicted upon the testimony of such accomplice, unless corroborated by such other evidence as tends to connect him with the commission of the crime.</p> <p>(5) . Same.</p> <p>Such corroborative evidence need not of itself be sufficient to show the commission of a crime or to prove the whole case outside the evidence of the accomplice, nor must it be wholly inconsistent with the defendant’s innocence; but it is sufficient if it tends to connect the defendant with the commission of the crime, comes from an independent source, and goes to some material facts tending to show the commission of the crime and that the defendant was implicated in it, and consists of something more than suspicious circumstances. .</p> <p>(6) . Grand Jury—Indictment—Testimony op Accomplice.</p> <p>Where it appears that the sole testimony upon which an indictment is found is that of a single individual who stood in the position of an accomplice and that the grand jury did not believe some of the statements made by him and which, if they were not true, must have been known by the witness to have been false, the grand jury is not justified in finding an indictment solely upon the testimony of such accomplice.</p> <p>(7) . Same—Indictment Not Dismissed Because Illegal Evidence Re-</p> <p>ceived.</p> <p>Where there is enough competent evidence to support an indictment, it should not be dismissed because illegal evidence was also received, unless 'it clearly appears that the illegal evidence improperly influenced the minds of the grand jury.</p> <p>Where there is enough competent evidence to support an indictment, and it appears that the grand jury also received irrelevant and immaterial evidence which probably referred to other and unrelated offences, but there is not enough in the papers submitted to enable the court to say that it was calculated to create a suspicion in the minds of the grand jurors that the defendant was guilty of other violations of law than those charged in the indictment before it, such indictment will not be dismissed because such evidence was received.</p> <p>(8) . Same.</p> <p>But where the questions propounded " to the witness before the grand jury called upon the witness to testify as to the operation of his mind, his belief, understanding and purpose, when such evidence was improper, and as to his opinion as to what was in the defendant’s mind; and the answers of the witness to such questions alone gave color to evidence which otherwise would have been non-criminating and which would have permitted an inference of innocence, such improper evidence is plainly prejudicial and for its reception by the grand jury the indictment should be dismissed.</p> <p>(9). Same—Code Grim. Pro. § 399.</p> <p>Section 399 of the Code of Criminal Procedure, which does not permit of a conviction upon the uncorroborated evidence of an accomplice, is applicable to the testimony of one who, because of the nature of the offence, is a principal.</p> <p>In misdemeanors, all concerned in the commission of the crime are principals.</p> <p><10). Same—Penal Code 41d.</p> <p>To sustain an indictment for a misdemeanor under section 41d of the Penal Code, there must be competent evidence sufficient to overcome the presumption of innocence and to remove reasonable doubt (1st) that the defendant was a dweller in a building in the city; (2d) that he gave false answers to questions asked of him; (3d) that those questions were asked of him by an elector of the city in which the defendant dwelt; (4th) that they were asked between the first meeting of the board of registry therein for an election and the closing of the polls at such election; (5th) that they related to the residence and qualifications as a voter of a person who either dwelt in such building or whose name appeared upon the list of registry of voters made by a board of registry as residing at such building.</p> <p>1(11). Same.</p> <p>Where an indictment for the commission of such a misdemeanor has been found without evidence that the defendant was an elector of the city where the registration in respect to which he was questioned was made, nor that he lived in such city, nor that he was twenty-one years of age or over, the indictment cannot be sustained; but, since it is possible that the lacking proof might be supplied if the matter were again submitted to the grand jury, the court should direct such resubmission.</p>

<p>(1). Disorderly Conduct—What Constitutes Offense—Failure to Support Wife.</p> <p>Where, after a wife had failed to recover in an action for alienation of her husband’s affections, they separate, and, after seventeen years, during which period he contributes to her support, hé refuses, though earning good wages, to further contribute, upon the ground that he is not liable for her support unless she lives with him, and her own earnings are insufficient for her support, he is properly convicted of being a disorderly person under section 899 (1) of the Code of Criminal Procedure.</p> <p>(2.) Same.</p> <p>That the wife might have brought an action for divorce and alimony is no answer to the charge of nonsupport.</p>

<p>Witness—Disqualification by Reason of Confidential Relation—Attorney and Client—Waiver of Objections.</p> <p>Where a person appeared before the grand jury in obedience to a subpoena issued by the district attorney and was examined in regard to a sale of railway property, which was being investigated to ascertain if the witness and others, in connection therewith, had stolen a great sum of money; and the witness, though invited and persistently importuned by the district attorney so to do, as persistently refused to waive his privilege and permit his counsel to testify relative to his communications to him respecting the transaction; although the witness fully answered the interrogatories of the district attorney relating to such transaction under the compulsion of the law and the coercive measures adopted by the district attorney, he did not by so doing waive his provilege; and the district attorney cannot require the witness against his will to reveal the communications confided to his counsel, nor the counsel to disclose the communications made to him by his client.</p>

Appeal by The People of the State of New York, by John K. Patterson, Jr., district attorney of Chautauqua county, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Chautauqua on the 9th day of December, 1907, discharging the relator from the custody of the keeper of the Erie County Penitentiary upon the return to a writ of habeas corpus.

<p>Confession—Burglary.</p> <p>On a trial for burglary a confession is admissible where it appears that it was not obtained by improper means, but that defendants were warned as to their rights and that it was purely voluntary.</p>

<p>Application for a certificate that it is reasonable that the charge against the defendant he prosecuted by indictment.</p>

<p>(1). Indictment—Defects, Defenses, and Objections—Motion to Set • Aside.</p> <p>The provision of section 315 of the Code of Criminal Procedure, requiring a motion to set aside an indictment to he heard at the time of the arraignment, has reference to a motion made under section 313 upon the grounds mentioned in the latter section, and does not apply to a motion to set aside an indictment based upon an alleged violation of defendant’s constitutional rights, predicated upon grounds not mentioned in section 313.</p> <p>(2.) Same.</p> <p>A motion to set aside an indictment as not founded upon sufficient legal evidence and as foundéd upon incompetent and illegal testimony is not one of the motions referred to in section 313 of the Code of Criminal Procedure.</p>

<p>Extortion—Indictment—Sufficency.</p> <p>In an indictment for an attempt to commit the crime of extortion it is sufficient if it is alleged that the defendant made some one of the threats which the law declares to be unlawful without setting out how he proposed to carry out such threat.</p>

<p>(1.) Indictment—Demurrer—Violation of Election Law.</p> <p>It is not a ground of demurrer to an indictment that the facts stated do not constitute a crime of which the Attorney-General of the State of New York has jurisdiction, because the facts set forth in the indictment show that the alleged crime was committed under the Primary Election Law and, if any crime was committed, it was under section 41 of the Penal Code of the State of New York.</p> <p>(2.) Same—Where Crime not Alleged to be in Local Jurisdiction.</p> <p>Nor is it a ground of demurrer to an indictment that the grand jury by which it was found had no legal authority to inquire into the crime charged, or that the facts stated do not constitute a crime of which the grand jury has jurisdiction, in a case where it does not appear upon the face of the indictment that the crime was not within the local jurisdiction of the county and where it is not so alleged in the demurrer.</p> <p>(3.) Same—Where Indictment States Facts Constituting a Different Crime than Charged.</p> <p>An indictment which charges the defendant with the commission of a certain crime, but states facts constituting a different crime, does not conform substantially to the requirements of sections 27,1 and 276 of the Code of Criminal Procedure and is demurrable upon that ground.</p> <p>(4.) Same—Signature of District Attorney not Necessary When Properly Represented by Attorney-General.</p> <p>It is not necessary that an indictment should be signed by the district attorney in a criminal action that is properly prosecuted by the Attorney-General and not by the district attorney.</p> <p>(5.) Same—Two Crimes Charged in one Indictment.</p> <p>Two different crimes may be charged in the same indictment only where the identical acts specified may constitute either of the crimes so charged.</p>

Appeal by the defendant, Frank M. Cornell, from a judgment of the Supreme Court, rendered on the 27th day of April, 1906, after a trial at the Oswego Trial Term, convicting the defendant of the crime of libel.

<p>(1.) Grand Jury—Leave to Inspect Minutes.</p> <p>Upon, a motion, by one indicted for the crime of subornation of perjury, for leave to inspect the minutes of the grand jury, it is sufficient that the motion papers indicate that a motion to dismiss the indictment is contemplated and that it will apparently be made in good faith and upon grounds which merit discussion and consideration; that the papers show that a reasonable effort has been made by the defendant to learn what was testified to before the grand jury without any inspection of their minutes, and to what extent it has been possible in that way to learn what was so testified to, and to what extent and why information in respect thereto has not been obtainable, and what, in the absence of such complete information, the moving parties surmise was the testimony before the grand jury and the grounds of such surmises, and that their surmises, in the light of the facts disclosed, are not unreasonable.</p>

<p>(1.) Bail—Remission of Forfeiture of—Code Grim. Pro. Sections 586, 597, 598.</p> <p>An application under sections 597 and 598 of the Code of Criminal Procedure for the remission of the forfeiture of cash deposited in lieu of bail under section 586 of said Code is addressed to the discretion of the court.</p> <p>(2.) Same—District Attorney Not Required to Notify Defendant.</p> <p>A district attorney is not required to notify a defendant out on bail of the particular day of the- term upon which he will move the case for trial; and the absence of such a notice, if none were given, is no excuse for defendant’s nonattendance, it being his duty to appear and attend on each day of the term unless discharged by the court.</p>