Volume 26 — New York Criminal Reports

<p>Appeal from a judgment of conviction in a Court of Special Sessions.</p>

<p>(1) Conspiracy—Criminal liability—Indictment—Sufficiency of the ACCUSATION.</p> <p>An indictment which alleges the making by defendant S. of a certain agreement for mutual aid and assistance whenever any of their number should be a defendant in a foreclosure action, in preventing personal service of the summons upon him and in hindering and obstructing the plaintiff in any such action in obtaining such judgment as he might be entitled to, sufficiently alleges a violation of section 580 (6) of the Penal Law which provides that “ if two or more persons conspire * * * to commit any act for the * * * obstruction of justice, or the due administration of the laws, each of them is guilty of a misdemeanor.”</p>

<p>Motion to dismiss an appeal.</p>

<p>(1.) Jurisdiction—Concurrent and conflicting jurisdiction—Exclusiveness OF JURISDICTION FIRST ACQUIRED. EXTORTION-ELEMENTS OF OFFENSE: NECESSITY OF INDICTMENT—INDICTMENT FOR OFFENSE SUMMARILY PUNISHABLE—REQUISITES AND SUFFIENCY OF THE ACCUSATION-SURPLUSAGE—ALLEGATIONS RELEVANT TO OTHER CRIMES.</p> <p>An attempt to extort money by means of verbal threats is a misdemeanor under section 857 of the Penal Law.</p> <p>The word “ feloniously,” in an indictment for attempting to extort money by means of verbal threats, may be disregarded under section 285 of the Code of Criminal Procedure.</p> <p>The word “ exclusive ” in the statute (L. 1910, eh. 659, § 31), establishing the inferior criminal courts in the city of New York, was not intended to limit the jurisdiction of courts of general jurisdiction, but was intended merely to define the jurisdiction of the courts established by said statute as between themselves, and the institution of a proceeding in a court of special sessions to punish for a misdemeanor is not a prerequisite to the right of a grand jury to indict for the same offense.</p> <p>Where two courts may take jurisdiction of the same persons and subject matter, the court first acquiring jurisdiction retains it to the exclusion of the other, where there is no statutory provision to the contrary.</p>

<p>(1.) Procedure—Inspection op minutes op grand jury.*</p> <p>A motion for the inspection of the minutes of a grand jury can be properly granted only where the moving papers present reasons for believing that the minutes if furnished would disclose ground for.the-granting of a motion to dismiss the indictment.</p> <p>(2.) Same—Right op accused to names op witnesses, etc.</p> <p>Where a witness has been fully interrogated before a magistrate and has stated that he has told all he knows about the commission of a crime, it may he assumed that upon a second examination before a grand jury he testified to no other or further facts; but no such assumption can be indulged in as to his testimony before a grand jury, from his omission to state facts in a written complaint to the magistrate, which can form the basis of a presumption that an indictment was founded upon insufficient evidence for the purpose of authorizing-the inspection of the minutes of the grand jury in aid of a motion to-dismiss the indictment on that ground.</p>

<p>(1.) PBOCEDUBE—INSPECTION OF MINUTES OF GRAND JUEY.*</p> <p>A motion for an inspection of the minutes of a grand jury can be properly granted only where the moving papers present reasons for believing that the minutes if furnished would disclose ground for the granting of a motion to dismiss the indictment.</p> <p>(2.) Same—Right of accused to names of witnesses, etc.</p> <p>Where an indictment for grand larceny, first degree, founded itt part upon defendant’s voluntary testimony before the grand jury, was, after a plea of not guilty, superseded by an indictment found by another grand jury before which defendant did not appear as a witness* a motion for leave to inspect the minutes of the grand jury in aid-of a motion to dismiss the indictment will be denied, where the moving papers fail to show that the indictment was found upon an insufficiency of legal evidence, or upon incompetent testimony, or that, defendant’s statutory or constitutional rights were violated.</p> <p>(3.) Same—Secbecy as to deliberations—What constitutes violation.</p> <p>The fact that the testimony of the assistant district attorney before the grand jury who found the indictment related to defendant’s declarations when interrogated by said assistant district attorney before the previous grand jury was not a violation of the secrecy of its. proceedings, nor was such testimony objectionable either as in effect-compelling defendant to testify against himself or on the ground that the stenographer’s minutes were the best evidence of such declarations.</p>

Y., convicting the defendant of violating ordinance 12 of the village of East Syracuse, N. Y., in allowing his place to be used for gambling purposes, and imposing a fine of twenty-five dollars.

<p>(1.) Indictment—Offenses continues into new counties.</p> <p>At common law one who carries property which he has stolen into or through a county other than that in which he stole it commits a new and distinct larceny in each county into which he takes it and is indictable therein.</p> <p>(2.) Same—Requisites and sufficiency of accusation—Surplusage— Joinder of courts—Duplicity of courts.</p> <p>Where an indictment for grand larceny in the first degree, after charging the defendant with stealing in the county of S. property of the value of $500, further charges that he brought said property into the county of N. and therein committed a theft of the same property, and a second count charges in common law form the commission by defendant of the same larceny in the county of IT., it is an indictment for grand larceny committed in the county of IT.; and the allegation as to the original taking in the county of S., the sole and only purpose of which is to show that defendant by continuing" to withhold the property from the true owner committed a larceny in the county of IT., is unnecessary and mere surplusage which does not vitiate the indictment.</p> <p>(3.) Same.</p> <p>The indictment, being within the local jurisdiction of the county of IT, and charging but one crime, is good upon demurrer that it charges more than one crime within the meaning of sections 278, 179 of the Code of Criminal Procedure.</p>

Appeal by the defendant, Isidore Campisi, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered against the defendant on the 19th day of January, 1910, convicting him of the crime of extortion.

Appeal by the defendant, Willard H. Peck, from a judgment of the Supreme Court rendered against him on the 25 th day of July, 1910, convicting him of the crime of perjury; also from an order bearing date the 4th day of March, 1910, and entered in the office of the clerk of the county of Onondaga, overruling the defendant’s demurrers to the indictment, and also from an order entered in said clerk’s office on the 25th day of July, 1910, denying the defendant’s motion for a new…

Motion by the district attorney, on behalf of the People of the State of ISTew York, for the forfeiture of two undertakings. The facts appear in the opinion.

<p>Motor vehicles—Speed law. Section 454 of chapter XII, page 109 (1911 ed.) of the ordinances of the city of New York, and section 287 and section 288 of chapter 374 of the Highway Law (Laws of 1910) construed. The Callan Law and the city ordinances do not conflict; both are enforcible in the city of New York.</p>

<p>Motor vehicle—Sec. 284—Number plate.</p> <p>A manufacturer or dealer who permits a car to be operated for a private use or for hire without having a separate number aside from the distinctive manufacturer’s number, violates the law.</p> <p>Personal use includes anything and everything not incidental to the business of manufacturing or dealing in motor vehicles.</p>

<p>( 1.) Cruelty to animals—Turtle—Penal Law, section 189. 1</p> <p>Where it appeared that a consignment of live turtles, with fins or flippers perforated and tied together on each side by means of rope passing through the perforations, were loaded on board a steamship at a foreign port, each of which turtles with fins so pierced and bound being placed on its back or shell on the deck of said steamer, in which condition and position the turtles were permitted to remain until the steamer docked at the port of New York, when they were .actually delivered to the consignee by the master of said steamer.</p> <p>Held, that sufficient was not shown to hold the consignee to answer ior violation of section 189 of the Penal Law, prohibiting the carrying of animals in a cruel manner, and further held on the facts that sufficient was not shown to hold said consignee to answer under said section because of his method of transportation of the turtles from the steámer to a warehouse.</p> <p>(12.) Same.</p> <p>Further held that the master of the steamer should be held to answer for a violation of such provision of the Penal Law on the ground of his having accepted for shipment and transported the turtles in the condition and manner aforesaid, the State criminal provision not impugning article 1, section 8, of the Federal Constitution, although affecting a subject of foreign commerce, as Congress had not legislated on the subject.</p>

<p>(1.) Indictment—Charge that defendants suffocated deceased by FIRE, NOT DEMURRABLE.</p> <p>An allegation in one of the counts in an indictment charging manslaughter that the defendant did wilfully and feloniously choice, suffocate and strangle the deceased by means of fire and of the smoke thereof, by reason whereof the deceased died, is a sufficient allegation of the fact and cause of death and is not demurrable.</p> <p>(2.) Same—Labor Law, § 80, Art. 6—Doors to open outward.</p> <p>An allegation in an indictment of a violation of section 80 of article 6 of the Labor Law, requiring factory doors to open outward and be left unlocked by “ the owners and proprietors of a certain factory ” is sufficient.</p> <p>(3.) Same.</p> <p>Section 80 of the Labor Law which provides that “ all doors leading in or to any such factory shall be so constructed as to open outwardly where practicable and shall not be locked, bolted or fastened during working hours ” forbids the locking, bolting or fastening of any such door during working hours.</p> <p>(4.) Same.</p> <p>Allegations that such owners failed to provide adequate means to guard and protect their employees and laborers while in the factory 'from injury by or from any fire which might occur therein and failed to keep the factory free from all unnecessary accumulation of inflammable and combustible material while laborers were within the factory and that they did carelessly cause, suffer and permit great quantities of remnants and clippings of cloth, dirt, lint and rubbish, which were of a highly inflammable and combustible nature, to be and remain in the factory and permitted this and other materials to -encumber and obstruct passageways to the doors, thereby affecting a large number of human beings among whom was the decedent whose life was lost in a fire which occurred in the factory, and that by such means the defendants did kill and slay the decedent, are not sufficient ¡allegations of the commission of a misdemeanor or the maintenance of a public nuisance as to make the defendant guilty of manslaughter by causing the death of the decedent by fire and smoke while the defendants were engaged in the commission of a misdemeanor; but an allegation in the same count that the defendants failed to keep the doors unlocked, unbolted and unfastened is a sufficient allegation of the commission of a public nuisance constituting a misdemeanor to» support the count.</p> <p>(5.) Penal Law, § 1530.</p> <p>Section 1530 of the Penal Law, defining a public nuisance as unlawfully doing an act, or omitting to perform a duty tending to annoyance, injury or insecurity, intends a duty directed by statute.</p>

<p>.Labor Law, Sec 14, forbidding alien labor on public works not in contravention OF BIGHTS OF OTHER SOVEREIGNTIES.</p> <p>Section 14 of the Labor Law which provides that none but citizens of the United States shall be employed upon public works of the State of New York is not in contravention of the rights of subjects of other sovereignties under treaties guaranteeing to them the most constant protection and security for their persons and property and the enjoyment in that respect of the same rights and privileges as are or shall be granted to natives and also granting to such foreign subjects liberty to carry on trade and generally to do anything incident to, or necessary to, trade, upon the same terms as native citizens or subjects.</p>

<p>Appeal from a judgment of the City Court of Utica convicting defendant of disorderly conduct under section 120 of the Penal Law.</p>

<p>(1.) Forcible entry—Penal Law, Sec. 2034—Nature and elements of offense.</p> <p>Section 2034 of the Penal Law, which provides that “A person, guilty of using, or of procuring, encouraging or assisting another to use, any force or violence in entering upon or detaining any lands or other possessions of another, except in the cases and the manner allowed by law, is guilty of a misdemeanor,” applies only to forcible entry on and taking or keeping possession of real property, and not to the mere taking or retaining possession of. a chattel which constitutes simply a trespass.</p> <p>(2.) Same—Seizure of property on conditional contract, after entering WITHOUT FORCE NOT A VIOLATION OF SECTION.</p> <p>Where defendants without force entered the premises of complainant and took possession of a stove upop the claim that it had not been paid for under the terms of a conditional contract for its sale, they cannot be convicted of a violation of section 2034 of the Penal Law though the complainant testifies that she was intimidated and threatened and the peace of the household was disturbed by defendants in their efforts to remove the stove.</p>

<p>(1.) Right to bear arms—Penal Law, § 1897—Sullivan Pistol Law.</p> <p>Defendant had a revolver containing four loaded shells in her trunk, in examining which the revolver was accidentally fired and the policeman who'heard the report, saw defendant in her own premises with the revolver in her hand and arrested her. Held, that the Penal Law, § 1897, is a police measure, relates to possession of a fire arm that may be concealed upon the person, without first having procured a permit to possess it and is constitutional and reasonable and the defendant must be held for trial.</p> <p>(2.) Same—Police power.</p> <p>That no State shall be restricted in its right to exercise its police powers in matters that concern the regulation of the manufacture, sale and possession of fire arms.</p>

<p>Plumbers must obtain certificate—Laws 1896, Chap. 803</p> <p>One who posts a sign in the city of New York with the words “ Plumbing ” without obtaining a certificate under chapter 803, Laws. 1896, violates the statute.</p>

Butts, City Magistrate: The defendant was arrested by Officer John Pierce, of the Sixty-first Precinct, charged in an affidavit verified September 9, 1911, with being over 16 years of age, and not being a police or peace officer, that he did have concealed upon his person, at St. Ann’s avenue and One Hundred and Thirty-third street, a revolver, without having a license therefor, in violation of chapter 195 of the Laws of 1911.

<p>(1.) Disorderly conduct—Section 1458 Consolidation Act—Jostling WITH INTENT TO ROB. .</p> <p>Evidence reviewed and considered, and defendants convicted thereunder.</p> <p>(2.) Same.</p> <p>Jostling and pushing in a public place, with intent to thereby secure an opportunity of committing robbery from the person, held to be disorderly conduct, though there is no proof of actual robbery.</p> <p>(3.) Same.</p> <p>A person accompanying the one jostling and pushing, under- the evidence adduced, held as a confederate, and convicted.</p> <p>(4.) Same—Motion to dismiss complaint.</p> <p>Facts considered, and motion to dismiss complaint denied.</p>