Volume 23 — New York Criminal Reports

<p>(1) . Extradition—Detention—Preliminary Warrant—Sufficiency of Affidavit.</p> <p>The constitutional provisions and statutes regulating interstate extradition apply only to persons legally charged with a felony or other crime; and unless so charged they cannot be apprehended here as fugitives from justice or delivered to another jurisdiction.</p> <p>(2) . Same—Affidavit.</p> <p>An affidavit to obtain a warrant preliminary to extradition charging one with the commission of a crime is insufficient unless facts are stated showing the sources' of the information and the grounds of belief; and where it was predicated upon an information sworn to in the State where the alleged crime was charged to have been committed, upon belief only that he had committed the crime, without facts showing the source of information or the grounds of belief, the magistrate here ' had no jurisdiction and defendant was entitled to be released upon habeas corpus, unless otherwise held.</p>

<p>(1) . Conviction on Plea of Guilty—Arrest Without Warrant.</p> <p>Where a person is arranged before a magistrate upon a charge of keeping a disorderly house and enters a plea of guilty, his conviction is not invalidated by reason of his having been arrested by a police officer without a warrant.</p> <p>(2) . Same—Trial—Sentence in Excess of Judgment.</p> <p>In such a case, where a fine of fifty dollars is imposed, the direction that the defendant in default of the payment of the fine- stand committed to the county penitentiary one hundred days is in excess of the judgment of imprisonment which should have been pronounced; but where the defendant pays the fine and has not suffered injustice by reason of the error in pronouncing sentence, upon appeal to the County Court the sentence will be modified by prescribing a period of imprisonment not exceeding fifty days.</p>

<p>(1) . Grand Jury—Custody of Minutes—Laws 1907, Ch. 587.</p> <p>The statute (L. 1907, ch. 587), which in terms requires the district 'attorney to keep in his custody the original minutes of a grand jury and to keep them secret, does not apply where the attorney-general or one of his deputies, under the Executive Law, supersedes the district attorney.</p> <p>(2) . Same—Copying Minutes by Unauthorized Person.</p> <p>While the minutes of a grand jury are in the possession of a special deputy attorney-general, who had duly superseded the district attorney in a certain proceeding, the unauthorized act of outsiders in making a copy of said minutes constitutes a trespass and is conceivably criminal, and an investigation of the matter before another grand jury is proper, and, under section 609 of the Criminal Code, the special deputy attorney-general and others may be subpoenaed by the district attorney to attend such investigation.</p> <p>(3) . Same—Subpoenas—Presumption in Favor of Legality.</p> <p>Where there is nothing to show that in the issuing of said subpoenas the grand jury had any other purpose than to discharge its duty under the law, the presumption in favor of the legality and regularity of its proceeding cannot be rebutted by a dubious and repudiated construction placed by counsel, "on motion to quash the subpoenas, upon certain language used by the district attorney on his oral argument as to the purpose of the investigation.</p> <p>(4) . Same—Motion to Quash Subpoena.</p> <p>While possibly a crime may have been committed by those who made the copy of said minutes of the grand jury, but nothing is shown to lead to the conclusion that the purpose of the proceeding in which the subpoenas were issued was the criminal prosecution of the persons subpoenaed, a motion to quash the subpoenas will be denied.</p> <p>(5) . Same—Subpoena Must be Obeyed.</p> <p>The constitutional provision that no person shall be compelled in a criminal case to be a witness against himself does not relieve him from obligation to appear in obedience to a subpoena.</p> <p>(6) . Same—Code Grim. Pro., Sec. 612, Constitutional.</p> <p>Section 612 of the Code of Criminal Procedure, prescribing the form for subpoenas issued by the district attorney requiring attendance before a grand jury, is constitutional; and a subpoena issued thereunder is sufficient where a fictitious name is used to designate a defendant in a case where the defendant’s real name is not known, though the subpoena does not inform the witness of the subject about which he will be called to testify.</p>

<p>Application for discharge of defendant upon a writ of habeas corpus.</p>

<p>(1) . False Pretenses—Penal Code, 566—Written Instrument.</p> <p>Section 566 of the Penal Code, which provides that “ A person, who, with intent to cheat or defraud another, designedly, by color or aid of a false token or writing, or other false pretense, obtains the signature of any person to a written instrument, is punishable,” etc., does not require that the writing shall answer the description of a written instrument before the signature is affixed thereto, but is satisfied if, upon the signature being appended thereto, it becomes a written instru- ' ment.</p> <p>(2) . Same—It is Not Necessary that Money or Property Shall be Affected or Obtained by the Writing.</p> <p>Nor does the section require that money or property shall be affected or obtained by the writing; but a return made and signed by the police commissioner of the city of New York to a writ of certiorari to review all proceedings had and remaining before him in anywise relating to the trial, conviction and dismissal of a patrolman from the police force is a “ written instrument ” within the meaning of said section.</p> <p>(3) . Same—Indictment.</p> <p>An indictment must contain a plain and concise statement of the acts constituting the crime without unnecessary repetition. The charge must be made directly and not inferentially or by recital. The indictment must allege the substance of all that is requisite to -the offense and no essential element of the crime can be supplied by intendment or implication. The indictment is sufficient if the act charged as a crime is set forth so plainly, certainly and concisely that (1) defendant is so informed of the accusation against him as to enable him to prepare his defense; that (2) the court is enabled to pronounce judgment upon a conviction according to the right of the case; and that (3) the record is sufficient to bar a second prosecution for the same offense.</p> <p>(4) . Same—“ Obtained.”</p> <p>An indictment-under said section 566, which follows the language of said section in the use of the word “ obtained,” is sufficient, whether “ obtained ” means not merely causing the signature to be brought into existence but the passage of it from the dominion of the signer, or whether a signature is “ obtained ” when brought into existence under the circumstances detailed in the indictment, as, if the latter view be correct, the error can only be availed of in connection with the proof upon the trial.</p>

<p>-Costs—Liability of Complainant for.</p> <p>Where, upon a trial in a court of Special Sessions for an assault in the third degree, the defendant is acquitted by the verdict of a jury who find as a fact that the prosecution was malicious and without probable cause, upon the failure of the complainant to pay the costs, as ordered by the justice of the peace, judgment is properly entered against him; but it is error to include in the costs an item for counsel fees to the attorney who appeared for the prosecution.</p>

<p>(1) . Perjury—Penal Code, Sec. 96—“ Material.”</p> <p>The payment of money for an undisclosed purpose by a person conducting a business which cannot lawfully be conducted without a license, but who is not alleged to be the owner of one, to a person not shown to hold any official relation to the bureau of licenses in the city of New York, or any relation to any person employed in such bureau, is not “ material ” within section 96 of the Penal Code, relating to perjury, on a special inquiry by the commissioners of accounts, under section 119 of the Greater New York charter, into the accounts or methods of the office of said bureau.</p> <p>(2) . Same—Indictment—Demurrer to.</p> <p>An indictment for perjury, which charges that upon such special investigation it became material whether the defendant, who had been duly sworn by one of the commissioners, ever received any money from one E., the proprietor of a common show in that portion of the city of New York commonly called Jamaica; that defendant falsely swore that he never had received any money from said E., whereas, in truth and in fact, defendant had collected and received from said E. certain sums mentioned in the indictment at times therein stated and that such testimony was wilfully false, is demurrable upon the ground that the alleged false testimony was not material to the subject-matter of the inquiry in question.</p>

<p>Game Law—Transportation of Game.</p> <p>The provision of the Forest, Fish and Game Law, prohibiting the possession of the carcass of a deer by a common carrier for transportation unaccompanied by the owner, is applicable to the transportation of the carcass of a deer killed and delivered to the common carrier without the State.</p> <p>The provisions of the Forest, Fish and Game Law, forbidding the possession of wild deer or venison between certain dates and making the possession thereof between those dates presumptive evidence that the same was unlawfully taken by the possessor, are applicable to a common carrier.</p>

Appeal by the defendant Christopher Cosmides from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 29th day of January, 1909, convicting the defendant of the crime of receiving stolen property, and also from an order denying the defendant’s motion for a new trial.

<p>Former Adjudication and Second Jeopardy—Discharge of Jury.</p> <p>Where, upon the trial of an indictment, by consent of both parties a juror is withdrawn and the jury is discharged, because of a conversation about the case between the complaining witness and the foreman of the jury during the progress of the trial, the discharge of the jury does not constitute an acquittal, and the defendant cannot thereby sustain the plea of former jeopardy.</p>