Volume 27 — New York Criminal Reports

Appeal by the defendant, George H. Dauchy, from a judgment of the County Court of Monroe county, rendered against the defendant on the 18th day of June, 1909, convicting him of the crime of bigamy, and also from an order denying the defendant’s motion for a new trial.

<p>(L) Disorderly conduct—What constitutes. "</p> <p>Where in case of voluntary separation the relator consented that, his minor children should return with their mother to the city of B to live and agreed to pay her a certain sum per week for her and. the children’s support, but ceased to pay the same upon her refusal to return to his home in another city, he abandons them at the city of B.</p> <p>'(2.) Same—Habeas corpus—Jurisdiction of committing magistrate.</p> <p>Where, upon a verified complaint made to the city judge of B charging the relator with being a disorderly person within the meaning, of section 899 (1) of the Code of Criminal Procedure in that he had. abandoned his minor children, he was arrested upon a warrant sufficient upon its face, issued by said city judge, the question of relator’s guilt or innocence of the offense charged cannot be determined on habeas corpus and he must be remanded to custody.</p>

<p>(1.) Assault: Upon police offices attempting forcible entry.</p> <p>One who forcibly ejects a police officer from premises while the latter is endeavoring to enter same by force, and without a warrant, for the purpose of inspecting same in order to determine whether a felony is therein being committed, held not guilty of assault.</p> <p>'(2.) Chaster of city of New York.</p> <p>Section 315 of the Charter, Laws of 1901, Chapter 466, while making it the duty of the police to inspect and observe certain classes of premises, does not require or authorize them to do so forcibly and against the opposition of the inmates and without warrant for the arrest of someone therein.</p> <p>(3.) Forcible entry of premises without a warrant.</p> <p>If a police officer has good ground, from facts in his possession, to believe that a felony is being committed in enclosed premises, where the emergency requires that those engaged in the commission of the crime he apprehended at once, he may, under such circumstances, and at his own risk as to the reasonable nature of his conclusions and the correctness of his information, forcibly enter such premises without a warrant.</p>

<p>(1.) Seduction under promise of marriage—Penal law, sec. 2175.</p> <p>A female who has at some previous time been married, though not at the time of the commission of the act complained of having a husband, is an “unmarried female” and entitled to the protection of the statute.</p> <p>(2.) Same—Chastity defiined.</p> <p>Castity is a state free from unlawful sexual intercourse, means purity as a fact and as an actual condition. A lawfully married woman, a widow, or one who has obtained a divorce may be chaste in contemplation of law.</p> <p>(3.) Same—Construction of statutes—Penal law, section 21.</p> <p>Section 2175 held not to be strictly construed, under the provisions of Penal Law, section 21.</p> <p>"(4.) Same—Presumption of death.</p> <p>The common law presumption of death after a lapse of years held not sufficient in a criminal prosecution; therefore, in a case, where the prosecutrix under a charge of seduction under promise; of marriage, was unable to produce proof of the death of her husband,, who had left her in 1902, and of or from whom she had not since heard, though she had made efforts to ascertain his whereabouts, held that the people had failed to make out a prima facie case and the complaint should be dismissed and the defendant discharged.</p>

<p>Tipping—Penal law, seo. 439.</p> <p>Defendant gave H., an employer of the firm of Applebee and Newman $10, for which H gave an order on Muller, a machinist who manufactured shanking machines for A. and N. which incorporated a process or secret device in shanking pearl blanks. The device was not patented. Held, that information in regard to the manufacture, etc., of the machine was secret and in its nature confidential and must have been communicated to Hall in the course of his employment as chief mechanic of the firm, and anyone seeking to influence ! him by a gift or gratuity to disclose any matter in connection with the machine, without the consent of his employer, violated Penal Law, Sec. 439.</p>

Meays, justice of the peace in and for the town of Van B-uren, Onondaga county, 3ST. Y., in which it was held that the defendant is a disorderly person within the provisions of subdivision 1 of section 899 of the Code of Criminal Procedure,, and which said order required the defendant to give the security provided for in section 901, which security was given by the defendant, and this appeal was thereafter taken;

<p><1.) Rescue—Penal Law, §§ 1692, 1696.</p> <p>Sections 1692 and 1696 of the Penal Law, read together, provide a complete scheme for the punishment of a person who rescues a prisoner held in custody, etc., and for the punishment of one who aids and assists a prisoner under arrest in escaping or attempting to escape.</p> <p><2.) Same.</p> <p>Upon evidence before the grand jury that a police officer had in lawful custody upon a charge of felony one who he had reasonable cause to believe had committed the crime; that his prisoner attempted to escape and that defendant attempted to rescue him from, the police officer, defendant is indictable under both section 1692 and 1696 of the Penal Law, and, there being sufficient legal evidence to bring defendant’s acts within said section 1692, the failure to include a count under the other section does not vitiate the indictment.</p>

<p>(I.) Insurance agent—Acting for foreign insurance company which HAS NOT MADE DESIGNATION REQUIRED BY LAW—PENAL LAW, SEC. 1199.</p> <p>Section 1199, Penal Law, held applicable to an agent doing business-in the city of New York, for a foreign insurance corporation which had not procured the certificate of authority required by section 9, chapter 33, Laws of 1909, even though the property insured under the policy written by such agent was located in a foreign State; and held further that the State has jurisdiction over foreign corporations, insuring property located without the State, if the contract he made-within the State.</p> <p>(2.) Constitutional law—Police power—Equal protection of th® laws.</p> <p>The transaction of business within this State by a foreign corporation is not a matter of right, but of privilege, which may be granted or refused, and it is a valid exercise of the police power to require such corporations to comply with the requirements laid down in the Insurance Law and Penal Law before transacting business within this State; nor is the denial by the State of the privilege of doing business except under certain restrictions and conditions, a denial of the; equal protection of the law.</p>

<p>,<L) Motion for new trial—Newly discovered evidence.</p> <p>Affidavits submitted on motion for new trial after filing of final judgment, on ground of newly discovered evidence, considered, and held, that as the alleged new evidence would not affect the result, the motion should he denied.</p> <p>¡(2.) Same—Verdict alleged to be contrary to law and against weight OF EVIDENCE.</p> <p>Evidence considered, and held sufficient to sustain conviction, and motion for new trial denied.</p>

<p>Receiving stolen cootis *—Retention by pawnbroker, when become» CRIMINAL.</p> <p>When the rightful owner of property appears and offers reasonable and convincing proof of the original stealing of his property and hia rightful ownership thereof, the pawnbroker -with whom the same has been pledged by another than the lawful owner is bound to restore_ the same to, and can make no claim to title against, the rightful owner, and by a refusal to deliver the property upon demand under-such circumstances, he is forcibly retaining stolen property against the rightful owner thereof, is therefore with felonious i.it,ent appropriating the same to his own use, and is guilty of larceny.</p>

<p>(1.) Sunday laws *—Theatrical performance—Section 2152 Penal Law.</p> <p>A performance of an act of negro minstrelsy by women, h'aving their faces blacked, in male attire, who talk in negro dialect, sing comic songs, distort their faces, and relate anecdotes and stories, upon a stage in a theatre, on Sunday, held a violation of, section 2152 Penal Law.</p> <p>(2.) Same—Liability of manager of theatre.</p> <p>The defendant, being proved to have been the ostensible manager of the theatre for some period of time prior to the commission of the acts complained of, and on the occasion of such acts, being shown to have assisted in taking tickets at the door, held, properly charged as a defendant in the information.</p> <p>(3.) Sufficiency of complaint or information.</p> <p>Any statement under oath that brings to the magistrate’s notice the fact that a crime has been committed, however crudely or imperfectly drawn, is sufficient to justify the issuing of a warrant for the party charged with the offense alleged to have been committed.</p> <p>(4.) Persons liable under section 2152 Penal Law.</p> <p>Section 2152 Penal Law held to apply not only to managers, lessees or owners of theatres, and those who advertise or post notices thereof, but also to the actors or actresses taking part therein. (People v. Hammerstein, N. Y. Law J. Sept. 7, 1911; People v. Surratt, Court of Special Sessions, May, 1909, contra.)</p>

<p>(1.) Motor Vehicle Law—City ordinances—When latter supersedes FORMER.</p> <p>The provisions of the ordinances of the city of New York respecting the speed of motor vehicles were not superseded by the Motor Vehicle Law, and are not covered by the inhibition therein contained against local ordinances.</p> <p>12.) Same—Necessity for posting.</p> <p>It is not necessary to the validity of an ordinance of a city of the first class that the city’s streets should be “posted” in compliance with section 288, Motor Vehicle Law.</p>

Application to correct a judgment in a criminal proceeding entered in the office of the clerk of the county of Greene on the 24th day of January, 1-912.

<p><{1) Distributing handbills—City ordinances.</p> <p>The inserting of handbills, circulars and advertising matter separately printed, in copies of a newspaper lawfully sold on the public highway, held, to be a violation of City Ordinances, chap. 9, sec. 408, the latter being authorized by sec. 50 of the Greater New York Charter.</p> <p>(2) Same.</p> <p>It is not necessary to establish the violation of the ordinance, to prove that the circulars, etc., were thrown upon the street, and a mere distribution of the same in any manner is sufficient to sustain the charge made.</p> <p><3) Constitutional law—Police power.</p> <p>The ordinance in question held to be a valid exercise of the police ■ power, which does not arbitrarily and unreasonably interfere with the rights of an individual under the guise of police regulation.</p> <p><4) Same—Powers of municipality—Use of public highways.</p> <p>A municipality, through its legislative body, has the right to prohibit the use of the streets by persons for any purpose detrimental to the common good, or that may conflict or interfere with the rights of others in the enjoyment of the highways, which should be unencumbered and clean, so as to promote the safety, health and comfort of the public.</p>

Appeal by the defendant, Andrew Long, from a judgment of the Court of General Sessions of the county of New York, rendered against the defendant on the 29th day of January, 1912, convicting him of the crime of rape in the first degree, and also from an order denying the defendant’s motion for a new trial.

The People of the State of New York, on the relation of Morris Cohen, against the Warden of the Third District Prison. From an order dismissing the writ and remanding the relator, he appeals.

Motion to inspect the minutes of the grand jury; motion to dismiss the indictment upon the ground that the' defendant, Webber, had gained immunity; demurrer to indictment.

Motion to inspect the minutes of the grand jury; motion to dismiss the indictment upon the 'ground that the defendant Webber had gained immunity; demurrer to indictment.

<p>(1) Demurrer to indictment—Right of people to appeal.</p> <p>The People may take an appeal from a judgment which sustains a demurrer to an indictment, although the right to- resubmit the case to the grand jury has been asked for and allowed.</p> <p>(2) Nuisance.</p> <p>Acts become criminal in their nature, within the definition of see. 1530 of the Penal Law, which defines a public nuisance as- the unlawful doing of an act which annoys, injures, or endangers the comfort, repose, health or safety of -any considerable number of persons, when such a considerable number of persons are annoyed by such acts.</p> <p>(3) Same—Sufficiency of indictment.</p> <p>For the reason that acts which annoy of necessity injure the comfort and repose of others, an indictment which charges that the acts complained of “ annoyed ” a considerable number of persons held sufficient to charge acts which not only annoyed, hut which also injured the comfort and repose of a considerable number of persons, and also sufficient to give -the defendant proper and full notice of the charge against him.</p>

Appeal by the defendant, iSamnel Rosen, 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 25 th day of May, 1910, convicting him of the crime of burglary and also from 'the indictment.

Appeal-from a judgment of conviction rendered against defendant in the City Magistrates’ Court of the city of New York, in and for the Eighth District of the Second Division.

<p>Motion for the direction of a verdict of acquittal.</p>

<p>(1) Liquor Tax Law.</p> <p>The Liquor Tax Law providing a fine and imprisonment for selling liquor without a license was not intended to apply to cases where customers are supplied in rooms adjoining the saloon through the medium of waiters.</p> <p>(2) Same.</p> <p>Where liquor is served in rooms, other than the bar rooms, and it can be shown that such rooms are connected and incidental to the bar room and that no separate bar room is maintained therein, such an act does not constitute the offense of selling liquors without a license.</p>

Habeas corpus by the People of the State of New York, on the relation of Fay Sheldon, as next friend of Euth 'Sheldon, against 'Alice Curtin, as superintendent of the Western House of Eefuge for Women. From an order dismissing the writ, relator appeals. Argued before McLennan, P. J., and Seeing, Kruse, Bob-son and Foote, J J.