Volume 28 — New York Criminal Reports

<p>Indictment—Larceny.*</p> <p>Where an indictment for grand larceny under section 947 of the Penal Law which in the first count after charging that defendant, with intent to deprive and defraud C. of certaiii goods and to appropriate them to defendant’s use and to the use of one F. of whom the defendant was then and there the attorney in fact, did then and there feloniously, fraudulently and falsely pretend and represent to C. in writing, to wit, in and by a certain written instrument set out in haec verba of and relating to the means and ability of said F. to pay for said goods, which written instrument was then and there signed by defendant for and in behalf of F. and that the representations so made by defendant were in all fespects false and untrue as he well knew at the time he made them, specifically that C. did sell to F. on credit certain goods and delivered them to F., and the indictment plainly indicates that it was not the intent of C. to sell the goods to defendant but to F., the defendant cannot be adjudged guilty of larceny under the said allegations.</p> <p>Where, however, the indictment in a second count charges the defendant with larceny as defined at common law, it is not “demurrable on the ground that the facts alleged do not constitute a crime, as proof that the title to the goods passed or was intended to pass to defendant was not required.</p> <p>* See Note on False Pretenses, vol. 20, p. 290.</p>

<p>Concealed weapons*—Penal Law, sec. 1897.</p> <p>Defendant was assaulted in his premises by one D. who struck him violent blows on the head with a stick, knocking him down. Fearing that his life was in danger, he drew from under his bed a pistol, which he fired in the air as a call for help, D. continuing the assault he fired more shots and wounded D. Held, that .defendant could not be held on the charge of carrying a fire arm in a public place.</p> <p>* See Note on Right to Bear Arms, 26-515.</p>

<p>(1) Concealed weapons*—Penal Law, sec. 1897.</p> <p>To have a pistol or other fire arm in a home or other private place is not a violation of law.</p> <p>(2) Same.</p> <p>Where a pistol is found in the defendant’s bed, in what is admitted to be his room, there being three other persons in the room at the time of its discovery, and no admission of ownership is obtained, held, insufficient to sustain a conviction for carrying concealed weapons.</p> <p>(3) Same—What constitutes possession.</p> <p>The “ possession ” of a firearm of the size that may be concealed ■on the person, without a permit, means actual and not constructive possession.</p> <p>See Note on Eight to Bear Arme, vol. 26, page 515.</p>

<p>Indictment—Penal Law, § 1746—Unauthorized sale oe cocaine— Pleading.</p> <p>An indictment under section 1746 of the Penal Law, which, after charging defendant with making a, sale of an unknown quantity of cocaine not at wholesale and not upon the written prescription of a duly registered physician, pleads the existence of certain alleged facts with a view to negativing that the sale as charged fell within any of the classes of sales excepted by the statute from, the general rule or test of liability, is good as against a demurrer.</p>

Habeas corpus by the People, on relation of Robert Howey, against the Warden of the City Prison, to examine into the cause of the imprisonment and detention of relator. Relator discharged.

Appeal by the defendant, Ellery Hoke, from a judgment of the Supreme Court, rendered against the defendant on the 25th day of-April, 1911, convicting him of the crime of violating the Liquor Tax Law.

<p>Appeal and error—Affidavit in record—Professional conduct of attorney—Counter affidadit.</p> <p>Where a record on appeal contains statements made in an affidavit, reflecting upon the professional conduct of an attorney, such attorney may file an affidavit in denial thereof; but it will not be considered as a part of the case upon which a determination of the appeal is made.</p>

<p>Disorderly conduct*—Public intoxication—Vagrancy — Statutory Provisions.</p> <p>Laws 1910, c. 659, § 88, relative to the punishment of persons convicted in the city of New York of public intoxication, disorderly conduct, or vagrancy, provides the sole penalty on conviction of those offenses, and necessarily repealed all previous statutes giving a magistrate power to impose a different sentence.</p> <p>See Note 14-412.</p>

<p>Magistrate’s Court—Judgment of conviction.</p> <p>A conviction before á magistrate is not illegal,' though he was not the one who presided when the deposition was taken and the defendant arraigned and his plea enterd.</p>

<p>Demubbeb to indictment.</p>

<p>Habeas cobpus to inquire into the cause of relator’s detention.</p>

Dependant was convicted of violating the Conservation Law hy fishing with the net in the waters of Oneida lake, upon a trial by a jury in a Court of Special Sessions of the town of Camden in. this county, and appeals therefrom.

Louis G. Schoepflin was convicted of operating a motor vehicle in a highway without having a distinctive number, corresponding to a proper certificate of registration, conspicuously displayed both on the front and rear of such vehicle, and he appeals. Affirmed.

<p>(1.) Common gamblers*—Evidence—Other acts.</p> <p>' Other acts of defendant charged with being a common gambler, which tend to show that he has continuously gambled, and even his reputation in that respect, held admissible.</p> <p>(2.) Same—Acts not constituting the crime.</p> <p>Where the evidence shows that that on a day named the defendants did engage in playing kerosene, a game of cards for money, this is insufficient to establish the crime charged.</p> <p>(3.) Keeping a gambling house—Evidence."</p> <p>Where the evidence shows that on a day named four persons were found playing a game of cards for money on the premises of the defendant, he should be held for trial.</p> <p>* See note on Betting and Gaming, Yol. 28-207.</p>

<p>Demubbeb to indictment..</p>

<p>Poob Law, § 80—Support of parents by children—Code Cbim. Pbo., § 914.</p> <p>Where an honorably discharged veteran eighty years' of age, with poor eyesight and in feeble health has no property but his pension of twenty-two' dollars a month, which is not sufficient for his support, and the appropriation made by the town authorities under section 80 of the Poor Law for the use of its veteran relief committee is nearly or quite exhausted, and it appears that the veteran has two sons, one earning seventeen dollars a week who has a wife and two children, his son being self-supporting, the other son, married, and earning about fifteen dollars a week, but without children, an order will be granted under section 914 of the Criminal Code directing eaxih of the veteran’s sons to contribute two dollars a week to his support.</p>

<p>City of New York—Code of ordinances, § 408—Distribution of circulars IN STREETS NOT A MISDEMEANOR.</p> <p>A violation of an ordinance of the city of New York is not a misdemeanor unless declared1 so to be.</p> <p>The provision of section 408 of the Code of Ordinances of the city of New York that “No person shall throw, cast or distribute in or upon any of the streets, avenues or public places, or in front yards or stoops, any hand bills, circulars, cards or other advertising matter whatsoever,” does not impose a penalty upon a person who furnishes to another circulars for the purpose of distribution on the streets.</p> <p>A violation of said section is not a misdemeanor, and the conviction of one for aiding and abetting in the violation thereof is illegal and the judgment of conviction will be reversed and defendant discharged.</p>

Oet September 16, 1912, the defendant was convicted of the crime of disorderly conduct upon a trial had before Harry E. Reed, justice of the peace of the town of Salina, Onondaga county, N. Y., sitting as Court of Special Sessions, and a jury, and it was thereupon adjudged by said Court of Special Sessions that the said Peter Dinehart should be imprisoned in the Onondaga County Penitentiary for a period of six months. From such conviction and commitment this appeal was taken.

Appeal by William A. Prendergast, comptroller of the city of New York, from an order of the'Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Richmond on the 17th day of February, 1912, granting the petitioner’s motion for a peremptory writ of mandamus.

<p>(1.) Practicing medicine* — Chiropractic adjustments — Public Health Law, § 153.</p> <p>A person who advertises “ consultation and spinal analysis free ” in literature entitled “New Road to Health,” which contains the statement “ The Chiropractic Idea—the new method of analysing the symptoms and adjusting the physical cause of disease,” etc., etc., held to be holding out and representing that he is able to cure sickness and alleviate suffering, and does so as a business, and such person conveys thereby the impression that he practices medicine, and not being a licensed physician, is therefore, guilty of a violation of section 153, Public Health Law.</p> <p>(2.) Same—Constitutionality oe legislative regulation.</p> <p>The Public Health Law in its provisions regulating the practice of medicine is clearly within the police power of the State, and its exercise is reasonable and constitutional.</p> <p>(3.) Same—Unauthorized person practicing under supervision op a REGISTERED PHYSICIAN.</p> <p>No physician can delegate his power and authority to another, the latter being unlicensed and unauthorized to practice medicine.</p> <p>See notes, 7-4, 21-236.</p>

<p>Embezzlement by bailee—Lábceny.</p> <p>Where complainant, for the purpose of enabling defendant to obtain access to the list of stockholders of a corporation, and make a copy thereof for complainant, transfers to defendant a certificate of stock in such corporation, and the latter hypothecates the same as collateral security for a loan made to him, without the knowledge or consent of the former, this constitutes larceny* and on a complaint alleging such facts, á warrant should issue.</p>

<p>(1.) Bigamy*—Lex loci contractu—Jodiciad notice of foreign statute. ■ . • .</p> <p>The laws of the State or country where a marriage was performed will govern in questions arising respecting the validity of the marriage contract, unless it is contrary to the prohibition of the natural law, or express prohibition of'statute; but the courts of this State will not take judicial notice of the laws or statutes of. a foreign State or country. . .</p> <p>(2.) Same—Same—Same—Presumption.</p> <p>It will be presumed in' the absence of proof, that the common law obtains, where the foreign -State takes its common law from England.</p> <p>(3.) Same—Presumption of death.</p> <p>Evidence considered and held, that there was' substantial support for the claim made that the former husband of the presecutrix‘was dead at the time of her marriage to the defendant.</p> <p>(4.) Same—Presumption of "innocence. .-</p> <p>Where a woman, without positive knowledge of the death of her former husband, a. native of Russia, but having heard that be was dead, and a state of revolution having existed for several years in the district in which he lived at the time she last had word of him,-and he having enlisted in the Russian "army for service in .that district prior to the time she learned of his supposed death, contracts a marriage in the State of Connecticut iu good faith and in the belief that he is dead, held, that a presumption of innocence arises in her favor which will remove any disability that she might otherwise be under because of the former marriage the absence of positive proof of her first husband’s dqath, or the fact that the necessary time to establish a presumption of death had not elapsed at the time of her second marriage.</p> <p>(5.) Same—Evidence.</p> <p>Evidence considered, and held, that the prosecutrix was capable of contracting a marriage at the time of her alleged marriage to the defendant, and that there is probable cause to believe the defendant guilty of the crime of bigamy.</p> <p>* See note on Bigamy, 27-16.</p>

<p>(I.) Oppression—Penal Law, § 854—Gambling house !a public nuisance.</p> <p>The police have a right to suppress gambling as a public nuisance by stationing an officer on the premises with instructions to permit no gambling to be carried on therein under section 1530, subd. 2.</p> <p>(2.) Same—Sec. 986, Penal Law.</p> <p>If the complainant had been arrested for violating section 986 Penal Law for keeping a gambling house, the police would have no right to keep a police officer on the premises after the arrest has been made.</p>

<p>Procedure—Motion in arrest of judgment—Defendant under sixteen YEARS OF AGE—WHEN GRAND JURY NO JURISDICTION TO INDICT.</p> <p>Where defendant under the age of sixteen years, on being allowed to withdraw his plea of not guilty to an indictment for burglary in the third degree and grand larceny in the second degree, pleaded guilty to the burglary charge, and upon a suspension of sentence was placed in charge of the county probation officer for a period of three years, a motion in arrest of judgment pursuant to section 467 of the Code of Criminal Procedure, made the following day, on the ground that the grand jury did not have jurisdiction to find the indictment because of defendant’s, age, must be granted, no claim being made that a certificate pursuant to section 57 of said Code had been filed.</p>

<p>Vagrants—Persons leading idle, disorderly and criminal lives and PROCEDURE FOR THEIR PUNISHMENT.</p> <p>One who stands in the lobby of a theatre with his face painted, clothed as a woman and having on a wig and slippers representing the “ White Slave ” is not a vagrant within the meaning of section 887 (7) of the Code of Criminal Procedure.</p>

Joseph Davis was convicted of crime, and he appeals. On motion to dismiss appeal. Appeal dismissed. Argued before Ingraham, P. J. and McLaughlin, Laugh-lot, Milleb and Dowling, JJ.