Volume 25 — New York Criminal Reports

<p>Grand Jury—Number Necessary to Find Indictment.</p> <p>Where eighteen grand jurors were present when the evidence was taken and the vote had upon the question of finding an indictment but only fifteen were present including their foreman when the indictment was presented to the court, the indictment will be dismissed on the ground that it was found by an illegally constituted grand jury, but without prejudice to a resubmission to another grand jury.</p>

<p>Gband Juby—Inspection oe Minutes oe.</p> <p>Where a conviction for rape was reversed by the Appellate Division, for the reason that the testimony of the prosecutrix, who was only four years old, was not sufficiently corroborated, an inspection of the minutes of the grand jury will be granted before the new trial to ascertain if any corroboration of her testimony there appeared.</p>

<p>Indictment—Forest, Fish and Game Law—Code Grim. Pro., § 151.</p> <p>Under section 24 of the Forest, Fish and Game Law, Courts of Special Sessions have jurisdiction to try persons charged with violations of that law in any town in the county, and are not required to direct the defendant to be brought before a magistrate of the town in which the offense was committed, as provided in section 151 of the Code of Criminal Procedure.</p> <p>In such a case, the offender is not entitled to answer to an indictment only, and section 211 of the Code of Criminal Procedure is inapplicable.</p>

<p>Penal Law Section 380—Bribery of Labor Representative—Evidence Necessary for Conviction.</p> <p>From the payment of money under circumstances of great secrecy to a representative of a labor union for the purpose of inducing him to resign as an officer of the union and immediately thereafter to enter the employ of the person making the payment in hostility to the union to help break a pending strike, the court may infer the wrongful giving of money to such person, while he was a representative of the union to induce him to help break up the strike, in violation of the prohibition of section 380 of the Penal Law.</p>

<p>Primary Election Law—Indictment—Attorney General May Act Without being Designated by Governor.</p> <p>The Attorney-General has ample power to act for the people under the Primary Election Law, to present matters to the grand jury himself or by a deputy without any designation by the Governor and to try cases wherein persons are accused of violations of said law; and his presence or that of his deputy before the grand jury will not invalidate an indictment for such offense.</p>

<p>Indictment—Defects, Defenses and Objections—Grounds for Dismissing or Setting Aside—Sufficiency of Grounds.</p> <p>It does not follow that, because some statute has been violated in the course of proceedings against a person who has been indicted for crime or because some right guaranteed to him by the constitution has been invaded, the indictment should be dismissed; but it must appear that the wrong done to him was in some way connected with the finding of the indictment.</p> <p>Although a person is unlawfully arrested without a warrant upon an unfounded charge that was abandoned when the defendant was arraigned before the magistrate; and although he was then charged with other crimes and, while hearings upon the latter charges were pending, was required to attend and produce his books of account before the commissioners of account in a pending investigation involving the matters upon which one of the charges against him was predicated; and although when he appeared before the commissioners with his books he was sworn, against his objection, and interrogated until he declined to answer further on the ground that his answers might tend to criminate him; and although his declination may tend to prejudice him upon a trial, in rendering more difficult the production of evidence of character or reputation in his behalf, the indictment against him should not for such reasons be set aside.</p>

<p>(N. Y. Law Jour., Feb. 18,1911.)</p> <p>(1.) Public Health Law, Sec 160—Illegal Practice of Medicine— Christian Science Healers.</p> <p>Administering Christian Science treatment for bodily ailment, with pecuniary compensation, is not covered by constitutional guaranty of religious freedom.</p>

<p>Constitutional Law—Rights Guaranteed to Persons Accused of Crime—Compelling Accused to Give Evidence Against Himself—Injury by Automobile—Laws 1910, ch. 374.</p> <p>The provision in subdivision 3 of section 290 of chapter 374 of the Laws of 1910 (Callan Law) that “Any person operating a motor vehicle who, knowing that injury has been caused to a person or property, due to the culpability of the said operator, or to accident, leaves the place of said injury or accident, without stopping and giving his name, residence, including street and street number, and operator’s license number to the injured party, or to a police officer, or in case no police officer is in the vicinity of said injury or accident, then reporting the same to the nearest police station, or judicial officer, shall be guilty of a felony” is violative of the constitutional provision that no person shall be compelled in any criminal case to be a witness against himself.</p>

<p>Extoetion—Indictment.</p> <p>Indictment—¡Finding and Filing and Fobmal Requisites—Evidence— Otheb Offenses, etc., by Accused.</p> <p>There is no impropriety in a grand jury hearing in one proceeding evidence of related or unrelated crimes of the defendant provided each indictment is found upon legal evidence.</p> <p>Where, in a single proceeding, a grand jury hears evidence against a defendant bearing upon unrelated crimes and finds three indictments against him; the first charging him with the crime of misappropriation as a public officer and grand larceny in the second degree; the second charging him with making a false entry in an account as a public officer, with making a false entry in an account as a person receiving money on behalf of the city of New York and with making a false entry in an account book belonging to and appertaining to said city with intent to defraud and conceal a larceny, and the third charging him with the crime of extortion, a motion to dismiss the indictments, on the ground that orderly practice and procedure before the grand jury required that the evidence relating to the extortion charge should be separately heard, and also upon the ground that in presenting the evidence as to said charge the minds of the grand jurors were predisposed to believe the defendant guilty of all the offenses, should be denied.</p> <p>The indictment for extortion charged that the sum of seventy-five dollars, the property of T and B, copartners in trade, engaged in business under a stated firm name, was feloniously received by defendant from said copartners with their consent, such consent being then and there by defendant induced by a wrongful use of fear on the part of said copartners then and there by defendant induced by means of a threat by defendant then and there made to said copartners to injure, annoy, harass and obstruct them with said copartners in their business and to prevent them from properly, freely and profitably carrying on the same, and especially to prevent and hinder them from receiving their merchandise at the public docks of the city of New York unless they, the said copartners, gave to defendant said sum of money. It appeared from the minutes of the grand jury that T, who was the only partner examined concerning the extortion charge, testified that defendant’s connection therewith was solely and exclusively with T. Held, that the language of the indictment, fear on the part of said copartners induced by means of a threat, was descriptive of the individuals composing the firm and referred to each of the partners previously mentioned in the indictment.</p> <p>It was not necessary for the indictment to allege that the copartners were put in fear by means of a threat on the part of defendant and it would have been sufficient to allege that the money was obtained by a wrongful use of fear induced by a threat to do an unlawful injury to the business of which T was a member.</p> <p>The fact that T gave defendant partnership money did not require the indictment to charge that it was- partnership money, the question being whether the money was obtained by defendant from the individual threatened.</p>

<p>Penal Laws, §§ 1530, 1894—Public Nuisance—Storing High Explosives.</p> <p>The having and keeping oí large quantities of high explosives, with blasting caps in one pile, held, under the circumstances of the case, to he criminal.</p>

<p>Gband Jury—Inspection of Minutes of.</p> <p>The mere fact that a matter was presented to a former grand jury which failed to 'find an indictment, will not justify the granting of an order to inspect the minutes of the grand jury.</p>

<p>(1.) Violation of Regulations of Public Service Commission—Public Nuisance.</p> <p>Where it is established by competent evidence that a railroad is a trespasser in maintaining and operating under a charter long expired and runs its trains part of the time at restricted hours in violation of an order issued pursuant to competent authority, imposing the duty upon the company to suspend the running of trains at noon time, among others, presumably to avoid the endangering of the school children and others who find it necessary to use the highway along the line of the road, a clear case of public nuisance is made out.</p> <p>(2.) Same—Jurisdiction—Order of Public Civil Service Commission.</p> <p>Where a railroad has violated an order of the Public Servicie Commission, which would subject it, at the direction of the Commission to a civil suit for $5000, this court is powerless in a criminal prosecution to act upon the proof of the alleged violation of said order, since that matter concerns the civil courts, except to hold the officer or agent procuring, aiding and abetting in its violations, if he were a party to this action so that jurisdiction could be had over his person as well as over the subject matter of the inquiry.</p>

<p>(1.) Obstruction of Streets by Stands of Vans and Horses—Ordinance City of New York, Chap. 12, sec. 446.</p> <p>The streets and avenues of New York are highways, the use and maintenance of which the legislative bodies in the City or state may regulate by law or ordinance.</p> <p>(2.) Same.</p> <p>The storing of a wagon in the highway is a nuisance—the primary use of a highway is for the purpose of permitting the passing and repassing of the public, and it is entitled to the unobstructed and uninterrupted use of the entire width of the highway for that purpose.</p>

<p>(1.) Abbest—Speeding Automobile—Preliminaey Complaint—Must State that Excessive Speed was Maintained fob Cebtain Distance.</p> <p>An information for violation of the Motor Vehicle Law, which states that the defendant was driving at a rate of speed exceeding thirty miles an hour, to wit, at a rate of thirty-five miles an hour, without the additional statement that such speed was maintained for a distance of one-fourth of a mile, charges no crime.</p> <p>Semble, if the affidavit or deposition taken upon the information by the justice is full enough to perform the function both of an information and a deposition, it will give the court jurisdiction notwithstanding omissions and defects in the information.</p> <p>(2.) Same—Plea Limited to Facts Chabged.</p> <p>A plea of guilty is limited to the information; and, if the information charges no crime, the plea will not prevent the defendant from raising that objection for the first time on appeal.</p>

<p>(1.) Arrest—Speeding Automobile—Preliminary Complaint—Referring to Law by Wrong Chapter Number not Fatal.</p> <p>An information for violation of the Motor Vehicle Law which refers to a chapter of the laws hy a wrong number is not so misleading as to entitle the defendant to its dismissal, where the name of the law and the date of its passage are stated.</p> <p>(2.) Same—Must State that Driving Carelessly and Imprudently, or Exceeding 30 Miles an Hour for one-fourth of a Mile.</p> <p>An information which merely states in substance that the defendants were driving on a public highway not within an incorporated village or city at a rate of speed exceeding thirty miles an hour, to wit, at a rate of speed of forty miles an hour, without</p> <p>. stating that the defendants were driving carelessly and imprudently, or exceeding a speed of thirty miles an hour for a distance of one-fourth of a mile, charges no crime; and upon appeal from a judgment of conviction the judgment should be reversed and, the fine of the defendants remitted.</p> <p>(3.) Same—When Objections Waived.</p> <p>By proceeding with the case after the denial of their motion to dismiss the information, the defendants did not in such case waive their right to maintain their objections to the sufficiency of the informations.</p>

<p>(1.) Constitutional Law—Consolidation Act Section 1458—Disor-derly Conduct.</p> <p>The provisions of section 1458 of the Consolidation Act of the city of New York (L. 1882, ch. 410), defining the offense of disorderly conduct tending to a breach of the peace and making it an offense cognizable by the police justices and their successors, the city magistrates, were continued by the Greater New York charter (L. 1897, ch. 378), and although the sections of the latter statute providing for punishment of the offense have been repealed by the Inferior Criminal Courts Act of the city of New York (L. 1910, ch. 659), which last statute contained identical provisions for the punishment of the same offense, the provisions of the Consolidation Act have not been thereby repealed, but it appears to have been the legislative intention that said provisions should be combined with those of the Inferior Criminal Courts Act which prescribes the punishment and that the offense should continue and should be triable by a city mgistrate.</p> <p>(2.) Same—Discrimination Against Certain Localities.</p> <p>Where a certain act may cause greater damage, mischief and inconvenience in cities than in villages of the State, it is no violation of the Constitution nor of the principles of sound legislation to make a distinction.</p> <p>(3.) Same—Giving Discretion to Magistrates as to Sentence.</p> <p>A statute prescribing a flat sentence of a given term for a certain offense is not rendered obnoxious to the provisions of the Fourteenth Amendment to the Federal Constitution because it provides also that the magistrate may commit a person convicted to the workhouse or county jail for a definite period not to exceed six months.</p> <p>(4.) Same—Trial by Magistrate of Minor Offense Punishable by Infamous Punishment.</p> <p>A penal statute is not unconstitutional because it provides that a party may be tried and convicted before a magistrate of minor offenses to which is annexed infamous punishment.</p> <p>(5.) Judge—Disqualification to Sit on Case.</p> <p>The fact that defendant who was represented by counsel and clearly proven guilty after a fair trial was known to the magistrate who had sat in trial of him on previous occasions was not a ground for a reversal of the judgment of conviction, as such fact did not disqualify the magistrates from hearing the case.</p>

<p>(1.) Criminal Libel, Section 1340 Penal Law.</p> <p>Evidence reviewed, and defendant held thereon for the Grand Jury.</p> <p>(2.) Same—Qualified Pbivulege as a Defense to a Charge Thereof.</p> <p>Privilege does not permit a person to go beyond the limits of fair and honest criticism, which must be subservient to the public interest and good, and without evil or malice.</p>

<p>Indictment—Motion to Dismiss.</p> <p>An indictment will not be dismissed on affidavits ol witnesses as to what they testified to before the Grand Jury.</p>