Volume 29 — New York Criminal Reports

Stark, justice of the peace of the town of Highlands in the county of Orange, convicting the defendant of being a disorderly person, in violation of section 899, subdivision 1, of the Code of Criminal Procedure, upon the charge of his wife, Ella F. Meara, charging him with the abandonment of his said wife and child, without adequate support, and leaving them in danger of becoming a burden upon the public, and neglecting to provide for them according to his means.

<p>City Court of Buffalo — Power to impose any sentence — County Court of Erie county — Conviction of assault in third degree — Laws of 1910, eh. 228, § 70.</p> <p>A statute (Laws of 1910, chap. 228, § 70), which vests the City Court of Buffalo, a court not of record, with power to impose any sentence which the County Court of Erie county may lawfully impose in like cases, does not infringe the constitutional provision that the right to trial by jury shall remain inviolate in all cases in which it has been heretofore used.</p> <p>Where, upon the joint trial of two defendants after the enactment of said statute of 1910, both were convicted in the City Court of Buffalo of assault in the third degree, the sentence of one to the Erie county penitentiary for a term of sixty days and to pay a fine of $100 is lawful, as is also a sentence to said penitentiary for a term of ninety days and to pay a' fine of $250 imposed on the other defendant.</p>

<p>(1.) Penal Law, § 925 — Defrauding hotel keeper.</p> <p>The object of section 925 of tbe Penal Law is to protect a land lord from actual fraud in obtaining credit, or in any effort to deprive him of his lien upon the baggage of a guest.</p> <p>(2.) Same.</p> <p>Where a guest boarded at a hotel over four months, making payments from time to time at the agreed weekly price for board, and there is no evidence of any misrepresentation as to his income or the value of his baggage that could have misled, and during the same period he ran a bar bill on which he also made payments, and, because of a quarrel with the hotel keeper, he stayed away one night and the next day while owing a bill of twenty-nine dollars took away his suit-case which was his only .baggage, at which time he was seen by and spoke to one of the servants of the hotel, and, upon a trial for a violation of section 925 of the Penal Law, no separation of the accounts was attempted to be made, and there was no proof that the hotel keeper made a specific application of payments, a judgment of conviction will be reversed.</p> <p>(3.) Same — Exclusion of testimony.</p> <p>Defendant having testified that he was ordered out of the hotel, the exclusion of testimony of the servant who spoke to him as he left as to what the hotel keeper said at that time was error, as it might have tended to sustain defendant’s version of the transaction.</p>

<p>Concealed weapons * — Penal Law, § 1897 — Intent—Btjbden of proof AS TO LICENSE.</p> <p>Intent is not an element in the crime of carrying concealed on the person any of the weapons specified in section 1897 of the Penal Law, without a written license therefor, in one over the age of sixteen years, and the provision of section 1898 of said law as to the presumption of intent does not apply.</p> <p>In such a prosecution the burden is on defendant to show that he had a license to carry the weapon.</p>

Edward U. Kahn was charged' with grand larceny, and from an order denying his motion to set aside the first count of the indictment, he appeals.

<p>Impairment op morals op minors — Gambling Devices.*</p> <p>A machine which is so arranged that the insertion of pennies therein causes packages of gum to emerge therefrom, certain of which packages contain numbered coupons which entitle the holder to packages of candy ranging in value from one cent to ten cents, held to be a gambling device, and its maintenance in a store or other place resorted to indiscriminately by adults and children, to be a violation of section 483 of the Penal Law, making it a crime to permit a child under sixteen years of age to be placed in a situation likely to impair its morals.</p>

<p>Impairment oe morals op minors — Gambling Devices.*</p> <p>A machine which is so arranged that the insertion of pennies therein causes packages of gum to emerge therefrom, certain of which packages contain numbered coupons which entitle the holder to packages of candy ranging in value from one cent to ten cents, held to be a gambling device, and its maintenance in a store or other place resorted to indiscriminately by adults and children, to be a violation of section 483 of the Penal Law, making it a crime to permit a child under sixteen years of age to be placed in a situation likely to impair its morals.</p>

<p>Appeal from Children’s Court of Buffalo.</p> <p>Michael Zmudzinski was convicted in the Children’s Court of the City of Buffalo of the violation of an ordinance, and he appeals.</p>

<p>•(1.) Publishing untrue and misleading advertisements — Section 421, Penal Law — Motion for a Bill of Particulars.</p> <p>Where an information sets forth the advertisement claimed to be in violation of this section in full, and negatives the representations therein set forth, as to the advertised product being a scientific combination of remedies, and harmless, the prosecution is not required to designate in the information wherein and whereby the said product is harmful, and a motion for a bill of particulars made by defendant should be denied.</p> <p>■(2.) Same.</p> <p>A defendant who publishes an advertisement regarding the efficacy of a medicinal product alleged to be harmful and deleterious, having put such representations before the world, must be assumed to have been fully prepared to maintain “ every statement or assertion of fact. * * * intended to give the appearance of an offer advantageous to the purchaser ”, and cannot be embarrassed in preparing for trial or subjected to any unreasonable surprise, because of the failure of the prosecution to set forth in the information particulars as to the harmful or deleterious character of its product.</p>

<p>(1.) Attempted extortion * — Evidence.</p> <p>Prosecution of a defendant jointly indicted with another for attempted extortion in obtaining money from a woman by threatening to make public and use an affidavit damaging to her and her family. Evidence examined, and held, sufficient to sustain the conviction of the defendant.</p> <p>(2.) Same — Evidence—Testimony of attobney fob one jointly indicted.</p> <p>The exclusion of the testimony of the attorney for the party jointly indicted with the defendant as to what was said to him over the telephone by the woman against whom the affidavit was made was not error, as the defendant had already testified concerning such conversation.</p>

<p>Allowance in homicide cases fob expenses of counsel.*</p> <p>Where relator was assigned as counsel for the accused, charged with homicide, and not being counsel at the trial of others jointly indicted, and had no information except the general charge in the indictment, and such other information as he was able to obtain from the defendant, who was unable to speak English, it was proper for the court to allow him $22.00, disbursed for the stenographer’s minutes before the committing magistrate, and for the minutes of the testimony of a particular witness, jointly indicted with the accused, but tried separately. The statutory term “ personal and incidental expenses,” held, not to be limited to carfares, hotel bills, postage, telephone items, etc., but to include items of minor expenses incurred on the personal account and for the personal use of counsel in preparing for the trial.</p>

Barney Deckenbrock was convicted of abduction, and appeals from an order denying a motion for new trial and the judgment of conviction.

<p>(1.) Bigamy* — Question as to death of husband of prosecutrix BEFORE SHE MARRIED DEFENDANT A QUESTION FOR THE JURY.</p> <p>Prosecutrix contracted her marrige with defendant in good faith, believing as she testified, that her former husband had been hilled in military service — Held that the question as to his death was for the jury.</p>