Volume 3 — New York Criminal Reports

Appeal by defendant, Patrick H. McGrann, from a judgment of the Court of Special Sessions of Kings county, of July 18, j 1884, affirming a conviction of said defendant, by Hon. An- 1 drew Walsh, Police Justice, on July 9, 1884, at the city of Brooklyn, of a violation of L. 1884, ch. 202 (the Oleomargarine Act. “ An act to prevent deception in the sale of dairy products ”).

Appeal by defendant, Morris Marx, from a judgment of the Court of General Sessions of ¡New York county, of conviction of the crime of selling as an article of food, an article designed to take the place of butter produced from pure unadulterated milk or cream of the same, the article so sold being manufactured out of oleaginous substances and compounds thereof other than those produced from unadulterated milk or cream from the same, in violation of L. 1884, eh. 202, “ An Act…

Appeal by Alfred F. Vedder, defendant, from a judgment of the Court of Sessions of Albany county, of April 18, 1884, convicting him of the crime of abortion. The defendant, together with James A. Patterson, was indicted by the grand jury of Albany county, under section 294 of the Penal Code, charging that they used instruments upon the body of one Annie A. Walters to procure her miscarriage. There are five counts in the indictment.

<p>Person upon whom abortion performed not accomplice.</p> <p>A person upon whose body an abortion is committed, is not an accomplice in the commission of the crime, and does not require corroboration. Such a person is not guilty of the crime of abortion, but is guilty of a separate and distinct offense.</p>

<p>Murder.—Charge.—Alibi.</p> <p>When, upon a criminal trial, the judge in charging the jury lays down erroneous propositions of law, but upon his attention being called thereto by objections, corrects the misdirections, and lays down the correct rule, no error is presented for review.</p> <p>But to obviate an erroneous instruction upon a material point, the withdrawal must be absolute, and in such explicit terms as to preclude the inference that the jury might have been influenced thereby.</p> <p>A charge upon a trial for murder, that there should be a conviction of murder in the first degree or an acquittal, is error, as taking from the jury tlie right and power to determine the intent, deliberation and premeditation.</p> <p>For the same reason, upon such a trial, an instruction that if the jury believe what a certain witness for the prosecution says, that that alone is sufficient to enable them to find a verdict of guilty, is error, for the same reason, and because it excludes from the jury the question as to how far such testimony was modified or neutralized by that produced on behalf of defendant, or what inferences should be drawn from any of it.</p> <p>The erroneous instruction that there should be a conviction of murder in the first degree or an acquittal, is not cured by its modification as follows : “ What I intended to say to you was that a verdict in this case other than that of guilty or not guilty, would not, in my judgment, be borne out by the facts of the case. I say to you that as a matter of right and power you can bring in a verdict of a lesser offense under an indictment charging murder in the first degree, and to that extent I modify my charge.”</p> <p>The defense of an alibi is not regarded by the law as a suspicious one.</p> <p>On cross-examination, a material witness for the prosecution was asked if he had been convicted of an assault and battery in 1875 and sent to the penitentiary for two months. Upon his answer, that he had not, defendant offered in evidence a record of his conviction dated 1st June, 1875. Upon the objection of the prosecution this was excluded. Held, error.</p> <p>The prosecution produced evidence to show that a person resembling defendant was seen near the place of and shortly after the time of the homicide, walking from that place toward Rochester. Defendant’s defense was an alibi, he claiming to have been at Rochester at the time of the homicide. To show that he could not have been at the place where the prosecution’s witnesses testified they had seen him, defendant offered evidence that shortly after that time he was at a certain place at Rochester. To show that if he was at Rochester he could not have had time to walk from the place where the prosecution’s witnesses claimed to have seen him, a witness who had walked the distance between the two places was asked, on behalf of defendant, “You may state at what time you left here and at what time you arrived there,” and “ At what gait did you walk ?” These questions were excluded, as also an offer to show what time it took to walk the distance. Held, error.</p>

Appeal by defendant, George W. Yyce, from a judgment of the County Court of Warren county, convicting him of practicing medicine and surgery in this State without being authorized to do so by a diploma from some chartered school, State board of medical examiners or medical society.

Trial of the defendant, Henry S. Church, for larceny of certain moneys, the property of the city of Troy, and received by said defendant as chamberlain of said city, March, 1885.

<p>Examination as to sanity.—Commission to take testimony not granted.</p> <p>The testimony of a witness residing out of the State cannot be taken on commission to be read before commissioners appointed to examine and report on the sanity of a defendant.</p> <p>The statute (Code Grim. Proc. §§ 636-657), only authorizes a commission, to take testimony to be read on the trial of an indictment.</p>

Appeal by defendant, Henry Williams, from-a judgment of the Court of General Sessions of New York County, of May 16, 1884, Hon. Frederick Smyth presiding, convicting him of the crime of grand larceny, upon an indictment found April 8,1884.

<p>Murder in the second degree.—Evidence.</p> <p>Upon the trial of an indictment for murder, it appeared that defendant and four others went into a certain liquor saloon, from which one of their number, G., had been ejected on account of his threats and violent conduct on being refused liquor about three-quarters of an hour before; the said party going there, as appeared from the testimony of one of them, on the invitation of G., he stating that he “ had been licked.” Upon their arrival, Gr. asked for drinks, whereupon the bar-tender, W., drew a revolver, and on his doing so one of the party distributed billiard cues among his associates. Another member of the party went up to the deceased, R. and said, “this is the---------that went for a policeman,” whereupon defendant dealt the deceased two blows on the head with the billiard cue, which he held in both hands, fracturing deceased’s skull, from the effects of which he died. The defendant at once left the state, remaining away until arrested. On the trial he denied all participation in the fracas, or that he was in the saloon at the time it occurred. It appeared that all of said party were members of a so-called social club, which held its meetings in said saloon. Held, that the evidence was sufficient to uphold a conviction of murder in the second degree, and that the testimony as to G.’s first visit to the saloon alone and what then occurred, was admissible as bearing on the question of motive.</p>

The defendants being wholesale confectioners in New York city; on March 11, 1884, were indicted in the General Sessions, as follows :—“ The grand jury of the city and county of New York, by this indictment, accuse Charles F. Bunge and Charles Grimm of the crime of contriving a lottery committed as follows: The said Charles F. Bunge and Charles Grimm, late of the city and county of New York, on the 28th day of February, in the year of our Lord 1884, at the city and county…

<p>Appeal by defendant, John Winness, from a judgment of the court of Special Sessions of January 26, 1885, convicting him of violation of the excise law.</p>

Fbedebiok Smyth presiding, convicting defendant, John Carpenter, of the crime of murder in the first degree. The facts appear in the opinion. By his unqualified acceptance of the eighth juror, before he took his seat in the jury box, the defendant waived his right to challenge him peremptorily.

Morse (otherwise known as Minnie West), of grand larceny, alleged to have been committed October 12, 1882. The defendant was indicted in said court, April 22, 1884, and on June 10, 1884, said indictment was tried before Hon. Henry A. Gildersleeve, one of the judges thereof, and a jury, who found the defendant guilty, whereupon she was sentenced by the court to imprisonment in the penitentiary of the city of New York for two years.

Application by defendant, Delos D. Wentworth, for a stay of execution of judgment. At the Herkimer County Sessions, December, 1884, the defendant was tried and convicted on an indictment, charging him with the offense of bigamy.

Demurrer by defendant, Alonzo Cooper, to an indictment for assault in the second degree, upon the ground that the facts stated therein do not constitute a crime.

The defendant, Thomas O’Louglilin, was indicted in the court of General Sessions of Hew York of the crime of grand larceny in the second degree, and on March 26, 1884, said indictment was tried before Hon. Henby A. Gildebsleeve, one of the judges of said court, and a jury, who found defendant guilty of the offense charged, whereupon he was sentenced to imprisonment in the penitentiary for the term of two years.

Appeal by defendant, Lewis R. Martin, from a judgment of conviction of forgery in the first degree. The defendant, with two others, was indicted November 20, 1883, in the court of General Sessions of New York, of the crime of forgery in the first degree, and his demurrer being overruled (reported 2 N. 7. Grim.

Appeal by defendant William Dennan, from a judgment of November 24, 1884, of the court of Sessions, of Queens county, affirming a judgment of the court of Special Sessions of November 22, 1884, convicting defendant of playing on Sunday. The facts appear in the opinion.

<p>Appeal by defendant August Platt (or Plath) from a judgment of the court of General Sessions of New York, of March 2, 1885, Hon. Frederick Smyth, presiding, convicting defendant of abduction, under section 282, subd. 1, of the Penal Code.</p> <p>The indictment, filed November 17, 1884, contained but one count, charging that defendant on July 20, 1884, “ with force and arms, feloniously did take one Katie Cavanagh, for ■the purpose of prostitution; she, the said Katie Cavanagh, 'being then and there female under the age of sixteen years, to ■wit, of the age of fifteen years, against the form of the statute in such case made and provided,” &c.</p> <p>After the conviction' of defendant a motion for a stay of ■execution was made before Mr. Justice Van Brunt, and was by him denied, for reasons stated in an elaborate opinion fully -considering the evidence (see mvte, p. 117), unless defendant would stipulate not to apply for bail before the hearing of the .appeal, to which defendant agreed.</p> <p>In July, 1884, last, the defendant was the proprietor of a ■ dance hall or concert saloon, at No. 141 Chatham street, in the ■ city of New York. It was a resort of abandoned women and men. The first floor was a saloon, where women sat, enticing frequenters to wine and lust. Up-stairs were bunks three ■tiers high, to which they and their paramours resorted.</p> <p>To this place, in the latter part of July, came Kate Cav-.anagh, a little girl under sixteen years of age, in company with another girl, Mary Crosby. She had left her home, in Newark, ■on that day, without her mother’s knowledge or consent, and had come to the city of New York. Going up to the place, .she asked how much it was to see the entertainment, to which ■/the defendant replied: “Nothing, my little dear, come in.” Having entered the place the defendant treated the two girls ■to soda-water, and asked them whether they were going to .stay there. Mary Crosby said no, and Kate Cavanagh said yes. He then took them both úp-stairs, and showing Kate a dress, :asked her if she wanted to put it on. And then in the same room he had intercourse with both of them. The girl then became an inmate of the house. That night she slept there with her companion, and the next day joined the seven or •eight other women who lived in the house. The defendant, two or three days after, bought her a new dress. Thereafter, in the defendant’s presence, she went up-stairs at different .times with other men, who had connection with her, and paid her one dollar, which she gave to Platt. She remained there (until near the end of August, when the officers of the Society for the Prevention of Cruelty to Children pursuing her, she .was sent to the brother of the defendant's in Cherry street; but she was finally rescued by that society.</p> <p>A female physician, who examined the girl, found that while the hymen had been entirely destroyed, no complete sexual intercourse with her had ever been had. The girl was so immature and the genital organs so undeveloped that a complete connection was impossible.</p> <p>Two officers of the society who visited No. 141 Chatham street on August 29, saw the girl there. On going in they walked up to the bar and asked for the proprietor. Platt was pointed out to them, and being asked, said he was the proprietor. They asked him for the girl, but he denied knowing any girl of that name. Among a group of prostitutes and drunken men the officers saw the girl, and asked her if she was Kate Cavanagh from Newark, New Jersey. She also replied no ; and the officers turned to look among the others. On second thought they turned around for her again, but she had disappeared.</p> <p>The age of the girl was proved to be about fifteen by the evidence of the girl herself and her mother.</p> <p>No evidence was introduced by the defendant.</p> <p>I. There was no evidence to support the testimony of the female alleged to have been abducted. Until the enactment of the Penal Code, no evidence was required to support that of a female who complained of having been abducted, but a conviction was allowed if the jury believed the defendant guilty. There being no precedent in this state on this point, the decisions on the provisions of the Code of Criminal Procedure, section 399, which prohibit a conviction on the testimony of an accomplice, unsupported by other testimony, are applicable to, section 283 of the Penal Code, on the question of what is corroboration in support of the testimony of an abducted female. There was no evidence at all to support the testimony of the “ abducted female ” in any respect; and, therefore, under section 283 of the Penal Code, and the authorities we now cite, the conviction was improper. People v. Courtney, 1 N. Y. Crim. 64; People v. Williams, I N. Y. Crim. 336 ; Ormsby v. People, 53 N. Y. 474. On this point Hr. Justice Van Brunt, in his opinion on granting a stay of proceedings, said : “ The false denials of the defendant to the officers are strong corroborations of a criminal intent on the part of the defendant in the keeping of the girl. The evidence of the officers shows that the girl was at the defendant’s place with his knowledge, and that it was a house of prostitution. From these facts, the jury might well infer, entirely independent of the girl’s testimony, that the defendant was keeping her there for the purposes of prostitution. The evidence of the mother and the officers then showed, independent of that of the girl herself, that she was under sixteen years of age, and was being kept by the defendant for the purposes of prostitution. This was evidence of the material facts, leading to the inference not only that the crime had been committed, but that the defendant was implicated in it.” Our answer to this is: The premises on which Mr. Justice Van Brunt comes to this conclusion are wrong. The evidence of the officers did not show that the girl was at the defendant’s place with his knowledge, nor did they testify that the place in which the girl then was, was a house of prostitution. Officer Wilson said : “ I asked him if he was the proprietor, and he said £ Yes.’ Wilson was talking to him about Kate Cavanagh; meantime I saw a girl rather young for the place. I walked up to her and asked her if her name was not Kate Cavanagh, and if she had not come from Newark ? Platt denied knowing any girl by that name, or any girl from Newark.”</p> <p>Officer Stocking said nothing other than was testified to by Wilson. Where, then, is there any false denial by Platt, to the officers % Because Platt said he knew no girl by the name of Cavanagh, or any girl from Newark, is it to be said that this was a false denial by Platt, to the officers \ Again, when the officers first saw the girl she was in a concert saloon. Mr. Justice Van Brunt holds it to be a “ false denial,” because Platt said he knew no girl from Newark by the name of Cavanagh, when there was no evidence in the case that he did know such a girl, and, therefore, a strong corroboration of the girl’s story, that she had been taken there by the defendant to a room and there the defendant had intercourse with her. But the theory on which this case was left to the jury, was that the taking of the girl up-stairs to the room, by the defendant, and his having intercourse there with her, constituted the offense; not the fact of the girl having been in the defendant’s saloon. Conroy v. People, 1 N. Y. Crim. Rep. 565; Home Ins. Co. v. Western Trans. Co., 51 N. Y. 93 ; Stapenhorst v. Wolff, 65 N. Y. 596.</p> <p>II. The court erred in the admission of evidence. The witness, officer Stocking, was permitted to testify that on August 20, 1884 (more than a month after the alleged abduction) he went to the defendant’s place and there saw two women drinking, one fighting, and had some trouble with the bartender. She called him names. He came twice from the bar and slapped her face. She continued to abuse the barkeeper and he came and put her out.</p> <p>Motion was made that this evidence be stricken out. Motion was denied and exception taken.</p> <p>The court permitted the same officer to prove that the defendant kept a disorderly house on September 17, 1884, two months after the abduction charged in indictment, and one month after the girl was seen by the officer in defendant’s place. The objections to the admission of this evidence are: 1. It was entirely immaterial what took place in the defendant’s house a month or two months after the alleged abduction. 2. This evidence tended to prove that the defendant was guilty of an offense different from the one for which he was on trial, to wit: that of keeping a disorderly house. People v. Gibbs, 1 N. Y. Crim. 472; Copperman v. People, 56 N. Y. 593 ; Coleman v. People, 58 N. Y. 555; Rosenzweig v. People, 6 Lans. 462; Stokes v. People, 53 N. Y. 164; Boland v. People, 19 Hun, 80; People v. Ware, 1 N. Y. Crim. 166; aff’d, 92 N. Y. 653.</p> <p>Mr. Justice Van Brunt said that the motion to strike out was too broad, as it included the striking out of other evidence. The answer to this is that no motion, objection or' exception was necessary. People v. Williams, supra.</p> <p>III. There was no taking as contemplated by statute. The evidence in this case showed a young girl who had been arrested in Jersey City while in the act of sexual intercourse in a public place—came to this city and voluntarily enters a house of prostitution, knowing it tobe such, and there, according to her own story, without any inducement whatever being held out to her, has intercourse with a man. In order to show a “ taking ” as contemplated by the statute, force and inducements must be held out, and where there is no evidence to show either of these, but, on the contrary, that the female voluntarily of her own accord, goes to the house and submits to intercourse with a man, no “ taking ” whatever is shown. Beyer v. People, 86 N. Y. 369.</p> <p>IV. Error was committed in charging the jury. The learned recorder charged as follows: “ It is immaterial for which of these prohibited purposes she was taken. If she was, at the time of the taking, under the age of sixteen years, and was feloniously taken for the purposes of prostitution or of sexual intercourse, the person who does so, violates the provisions of the statute, and is guilty of the crime of abduction. There are two questions in this case which yon are called upon to determine: Did the defendant take the girl Kate Cavanagh for the purpose of prostitution or sexual intercourse % If you determine this question in the affirmative, the next question for you to determine will be : ‘ Was she at the time she was so taken a female under the age of sixteen years f If you find both of these questions in the affirmative, you will convict the defendant.”</p> <p>The court further charged on this point: “ The first question for your determination I repeat, is this : Did this defendant take the girl Kate Cavanagh for the purpose of prostitution or sexual intercourse % If you determine that in the affirmative, the next question will be: ‘Was she at the time she was so taken, a female under the age of sixteen years V If you find both questions in the affirmative, it will be your duty to convict the defendant of the crime charged in the indictment.”</p> <p>The statute, Penal Code, section 282, is as follows: “Abduction. A person who: 1. Takes a female under the age of sixteen years for the purpose of prostitution or sexual intercourse, or without the consent of her father, mother, guardian or other person having legal charge of her person for the purpose of marriage; or, 2 . . . ”</p> <p>The indictment contained only one count, and that charged the defendant with taking the girl Kate Cavanagh for the purpose of prostitution. There was no charge that the defendant took the girl for the purpose of sexual intercourse; the only charge was that he took her for the purpose of prostitution. A perusal of the charge will show that the only question actually submitted for the jury’s consideration was, whether the defendant took the complainant for sexual intercourse. This defendant was, therefore, indicted for one crime and convicted of a different one. To take a girl for prostitution is to take her for indiscriminate sexual intercourse. Carpenter v. People, 8 Barb. 603 ; People v. Parshall, 6 Park. 129.</p> <p>That the jury had no right to convict the prisoner of the crime charged in the indictment, because they determined that he had committed another and distinct offense, is too plain to require argument. Murphy v. People, 3 Hun, 102; 6 T. & C. 369. Mr. Justice Van Bkunt, in his opinion, admits that this was error, but he says : “ This is claimed to be error because the only offense charged in the indictment was 1 taking for the purpose of prostitution.’ There, however, was no exception to this branch of the charge, and the attention of the learned recorder was not called to the fact that there was only one count in the indictment.”</p> <p>This reasoning seems to be fallacious. 1. Because an exception is unnecessary, People v. McCann, 16 N. Y. 58; Wilke v. People, 53 N. Y. 525.; Levy v. People, 80 N. Y. 327; People v. Williams, supra; Code Crim. Proc. § 527. 2. Because in no case is it incumbent on counsel for defendant to call the court’s attention to the offense for which the prisoner was on trial. The court is presumed to examine the indictment and to present the issue raised by the defendant’s plea of “ not guilty ” to the jury for their determination.</p>

<p>Power -to suspend sentence.</p> <p>Power to suspend sentence exists in superior criminal courts.</p> <p>A defendant who was under sixteen at the time of his conviction, and upon whom sentence was suspended, cannot after attaining that age be sentenced upon such conviction, where the effect of such sentence, by reason of his being over sixteen, would be to inflict a punishment greater than that to which he was liable at the time of his conviction.</p>

Appeal by defendant, Mai tin Tyrrell, from a judgment of the Court of Sessions of Kings county, Hon. Henry A. Moore, presiding, of May 2, 1884, convicting him of keeping a disorderly house. Upon the trial, William H. Palmer, having been duly called as the fourth juror and a challenge interposed, the same was duly tried by the court, and the juror was examined as follows : By Mr. Wernherg.—I have a strong impression on the point. Q. What point ? A. In reference to the'case.

Perjury was assigned in the indictment, which was dated April 8, 1884, on an affidavit made on or about December 31, 1883, by the defendant James Bowe, to certain items of an account under the contract described in the opinion. The indictment coming on to be tried at the Oyer and Terminer of New York county, the defendant interposed a demurrer, on the ground that the facts therein stated did not constitute a crime, and the justice presiding at the trial, Hon. George 0.

<p>Larceny.—Evidence.—Judge’s Charge.—Confession under § 395 Code Grim. Proc.—Trial.</p> <p>Upon the trial of an indictment for larceny in the first degree, the larceny by some one was proven by uncontroverted evidence ; it also appeared that defendant alone knew, from complainant’s wife, of the possession of the money by her husband, and that it was kept in a trunk under the lounge ; that from the time it was last seen in complainant’s house till it disappeared, defendant was the only person known to be in the house, and the evidence tended to show that no one else could have been there ; that while defendant was in the house there was a period of fifteen minutes when she was alone and could have removed the trunk ; that she lived two or three rods from complainant; that while in complainant's house alone and in the dark she opened the door for the ostensible purpose of carrying out a bedstead; that four $5 gold coins of the kind stolen were after-wards found concealed in defendant’s outhouse; and that tracks corresponding in size to the feet of defendant and her daughter were found leading from the house to the place where the trunk was discovered broken open and rifled. Held, that these facts, with others of minor importance corroborative thereof, called for a submission to the jury, and that a verdict of guilty could not be disturbed.</p> <p>Defendant has no right, at the close of the people’s case, to demand that the court rule upon abstract propositions of law as applicable to the case, there being no motion or application before the court calling for an expression of opinion thereon, and such request should be refused.</p> <p>After the case has been properly submitted to the jury, the court cannot be called upon again to repeat in different -words, or to pass upon abstract or theoretical questions.</p> <p>A declaration made by one accused of a crime denying any criminal act and explaining to her own advantage, a suspicious circumstance,— e. g., the existence of foot tracks,—is not to be deemed a confession under section 395 Gode Grim. Proe..</p> <p>A statement by a police officer to the prisoner, after she knew that she was suspected of the crime, that “they had found enough to convict her, and she might as well own up,” is nota threat within the meaning of section 395, Gode Grim. Proe. Said section has not changed the common law rule in favor of one charged with crime.</p> <p>Where the testimony of one of the witnesses for the prosecution is drawn out by defendant upon cross-examination, and is upon a collateral matter and hearsay, the defendant may not be permitted to contradict or question it.</p> <p>Where it is theory of the prosecution that defendant and her daughter carried the trunk containing the property which -was stolen, to the place where it was found broken' open and rifled, it is competent to prove that the shoe of the daughter was of a size to make one of the tracks leading from defendant’s house to the place where said trunk was found.</p> <p>After a full and fair charge, the jury having been told that they must convict or acquit upon the impressions arising from the whole evidence, and if a reasonable doubt existed, defendant must be acquitted, defendant has no right to demand that the court charge that a particular portion of the evidence may be true and the defendant still not be guilty, or that the jury ought not to convict if they do not believe certain parts of the evidence.*</p> <p>A charge submitting to the jury the conflicting evidence of the police officers and defendant with the influences and motives surrounding them ; a charge permitting a verdict of larceny in the first or second degree, or petit larceny; a refusal to charge that the evidence of the commission of the larceny was presumptive only; and the submission to the jury of the evidence touching the identification of the coins found, and defendant’s possession thereof, —considered and approved by the court.</p>

Writ of Certiorari to review the proceedings of the court of Oyer and Terminer of New York county, May 11, 1885, by which Harvey M. Munsell, the relator, was sentenced to be imprisoned for thirty days and to pay a fine of $250.

Appeal by William Bassford, defendant and appellant, from a judgment of the Court of Erie county, of October 30, 1884, Hon. W. W. Hammond, presiding, convicting defendant of forgery in the second degree, and from an order of said court denying defendant’s motion for a new trial, and also from an order denying defendant’s motion in arrest of judgment.

The indictment was found in the Monroe County Oyer and Terminer, October 6, 1884, and was tried November 14, 1884, in the Court of Sessions of said county, before Hon. John S. Moegah, County Judge, with associates, and a jury, who found the defendant guilty, as hereinafter set forth.

Appeal by the defendant, William Menken, from a j udgment of the Court of Oyer and Terminer of Broome County, of December 9, 1884, Hon. Celoba C. Martin, presiding, convicting defendant of murder in the first degree, and from an order denying defendant’s motion for a new trial.

Trial of an indictment. The defendant, Edward Sculley, was indicted for the crime of perjury in the court of Oyer and Terminer of Orleans county, October 9, 1884, and was tried in said county before Hon. Charles Daniels and a jury, June 4, 1885.

Appeal by defendant, Patrick Kiernan, from a judgment of Court of Oyer and Terminer of Queens county, Hon. E. M. Cullen presiding, of October 31, 1884, convicting defendant of murder in the first degree, and from orders denying a motion for a new trial and an arrest of judgment. The facts appear to the opinion.

<p>Forgery—Uttering Forged Check—Evidence of Guilty Knowledge and Intent—Similar Transactions—Conviction of Disorderly Conduct as Affecting Credibility—Request to Charge—Court</p> <p>BEING UNDER MISAPPREHENSION.</p> <p>Upon the trial of an indictment for forgery in the second degree in uttering a check, knowing the same to be forged, it appeared that the defendant, after endeavoring to have the check cashed elsewhere, presented it to a grocer in payment of sixty or seventy cents’ worth of provisions, purchased by her, receiving the balance thereof in money, at the same time stating it was a good check. It was drawn for §13, and purported to be signed by Wm. F. Scott. No person of that name ever had an account at the bank on which it was drawn, and Wm. F. Scott testified that the check was not signed by him, and that there was no other person of that name in New York city to his knowledge. It also appeared that on the same day she passed another small check, under similar circumstances, as to which check there was like evidence that it was a forgery, and that on the day after she changed her place of residence to a remote part of the city. Upon the trial she stated that the checks had been given to her to be cashed by a man with whom she was living, and that she believed them to be good.</p> <p>Meld, that the evidence as to the forgery of the check was sufficient fertile consideration of the jury, and that defendant’s knowledge of its character might 'be inferred from what transpired at the time of passing it, and her conduct afterward, and also from the fact that near the same time she passed another check under similar circumstances, which probably was forged.</p> <p>It appeared on defendant’s cross-examination that about three weeks previous to the transaction involved, defendant passed another small check which, as she testified, “ came back bad.”</p> <p>Meld, a circumstance which the jury might consider as having some bearing on the reliability of her testimony as a witness, and being a transaction similar to the one on which the indictment rested and near the same time. It so far also tended to prove that she probably was engaged in uttering forged checks of a small denomination.</p> <p>An error in receiving hearsay testimony of a witness for the prosecution is cured when the fact testified to appears on the direct examination of the defendant.</p> <p>The fact that defendant has been arrested, convicted and fined for disorderly conduct may be considered by the defendant as having a bearing upon the weight of defendant's evidence.</p> <p>Where, on a request to charge as to the bearing of a certain fact in the case, it appears the court, under misapprehension, has confounded it with another fact, it is the duty of counsel, if further directions are desired on the subject, to correct such misapprehension.</p>

Appeal by James E. Kelly, defendant, from a judgment of conviction entered, December 1, 1884, upon a demurrer in the Oourt of Sessions of the County of Kings, Hon. Henry A. Moore, presiding. Defendant was jointly indicted with two others under section 351 of the Penal Code, as appears more fully in the opinion of the court, and demurred to the indictment upon the grounds : First.

<p>Muedee—Instructions to Juey.</p> <p>If upon a trial for murder, there be evidence or inferences arising from the evidence, which might bring the case within the crime of manslaughter, it is the duty of the court to so charge the jury, and to point out the particular facts and states of mind which the jury must find to have existed to bring the homicide within the crime.*</p> <p>In such a case it is error to read to the jury the sections of the Penal Code defining manslaughter, preceding the reading by the remark, that the court did not see the applicability of the sections to the case.</p>

<p>Assault with intent to commit Rape.</p> <p>Assault with intent to commit rape is accomplished by a felonious assault made upon the person of a female, with a preconceived intent to have sexual connection with her against her will, by the use of absolute force. An attempt at sexual intercourse with a female, there being no violence, abandoned as soon as the female refused and resisted, is not an assault with intent to commit rape. The evidence in the present case examined, and held not sufficient to warrant the submission of the case to the jury.</p>

Appeal by defendants William Y. Havens and Fred. H. Havens from an order made by the Court of Sessions of Onondaga county, Hon. A.. J. Northrup* County Judge, presiding, denying a motion, to set aside the indictment for criminally receiving stolen property, made under subdivision 2, of section 313 of the Code of Criminal Procedure.

Department, October, 1884 (2 N. 7. Grim. Rep. 450), affirming a judgment convicting defendant, Franz Joseph Petmecky, of the crime of murder in the first degree. The facts and exceptions are fully set forth in the opinion.

<p>Evidence.—Form of Verdict.</p> <p>Defendant was indicted for an assault in the first degree. Upon the trial, two police-officers, witnesses for the prosecution, testified that shortly before the assault, they were told that “the fellows hada fight down below, that there was a drunken crowd at a place called Whitham’s ” (near which defendant was shortly afterward encountered by the officers). Held, that this evidence was admissible, not as bearing on the guilt of defendant, but to show the circumstances under which the officers were acting when they met defendant, and why they were properly in the part of the village where the affray occurred.</p> <p>The complainant testified that after the injury he received from the assault of defendant, he thought he sent a messenger after Dr. M. 2L, to sew up his eye. It was not disputed that Dr. M. N. did sew up the eye. Held, that this evidence was admissible as bearing on the nature of the injury, and its treatment by a physician.</p> <p>The admission in rebuttal of evidence which would have been a proper part of the affirmative case, is within the discretion of the court.</p> <p>The conduct of a person charged with crime, immediately after its commission, is a proper subject of inquiry.</p> <p>The court, being engaged in explaining to the jury the provisions of the statute as to assaults in different degrees, said, “ A person who assaults another willfully and wrongfully, wounds or inflicts grievous bodily harm upon another, either with or without weapons, under that breach of it you would be justified in finding the prisoner guilty of an assault in the second degree. .... While the second count of the indictment under which this trial has proceeded, charges an assault with intent to kill, you are still at liberty, and it is your duty to find him guilty of a lesser offense, such as assault in the second degree, or third degree, if you are satisfied the evidence justifies it." Held, not the expression of an opinion that the jury should convict.</p> <p>Upon an indictment for a crime, consisting of different degrees, the jury may, by a general verdict, find defendant not guilty of the degree charged in the indictment, and guilty of any of the inferior degrees.</p>

Demurbeb to indictment. The defendant, James J. Wise, was indicted by the grand jury of Albany county, under §§ 94 and 649 of the Penal Code, and a demurrer was interposed by the defendant on the grounds set forth in the opinion.

<p>Larceny.—Post-dated Check.</p> <p>The giving of a check by a person upon a bank at which he has no deposit or credit, is not larceny under § 529 of the Penal Code, unless there is a willful intent to defraud.</p> <p>Defendant paid a debt by a post-dated check, stating that he did not want it presented till the day of its date, as he had bought certain property; that therefore he was a little short, and that he had paper out on which he expected to get some money. Held, not larceny under § 529 of the Penal Code.</p>

Appeal by defendant, Frederick Grim, from a judgment of the Court of Sessions of Rensselaer county, affirming a judgment of the Police Court of Troy, convicting defendant of petit larceny.

<p>Larceny and False Pretenses under Revised Statutes.— Evidence..—Judge’s Charge.</p> <p>Upon the trial of an indictment, in determining whether the complainant intended to part with the possession and title of the money, or simply intended to pledge it. as security, retaining the title thereto, the court is not confined exclusively to the instrument executed by the parties at the time, where that instrument was obtained by fraud, and was one of the tricks and devices by which the money was obtained. It alone is not conclusive as to the precise intention and agreement of the parties, but it should be viewed in the light of all the facts in the case.</p> <p>People®. McDonald, 43 W. T. 61; Smith®. People, 53 N. T. Ill; Hildebrand ®. People, 56 lb, 894; People «. Loomis, 67 lb. 329; Zink ■ a. People, 77 lb. 114; Thom ®. Turck, 94 lb. 95, followed as to distinction under Revised Statutes, between procuring money by false pretenses, and grand larceny.</p> <p>The judge’s charge in that regard, in this case, reviewed and approved.</p>

<p>J.tjbobs.—Bubdiost of Peoof.—Reasonable Doubt.—Code Cbim. Peoo. §§ 376, 455 ; L. 1873, o. 427.</p> <p>Section 376 of the Code of Criminal Procedure does not require that a juror to be acceptable should say that he knows that he would not be influenced by his previous or present opinion or impression, but only that he believes he would not be, and that he believes he can render an impartial verdict.</p> <p>Defendant, on trial for murder, admitted that he killed deceased, and that he then committed larceny of deceased’s clothing and money but denied that he intended to kill deceased by the blow, struck, as he alleged, in a heat of passion, and denied that prior to the killing he intended to commit the larceny. The court charged in substance that, as from the nature of the instrument used by defendant, i he jury might infer that the blows were struck with an intent to effect their natural and probable consequence,—namely, death—it was then necessary for defendant to satisfy them by a preponderance of evidence that his statement was true. Held, error.</p> <p>It is error to refuse to charge that the prisoner is entitled to the benefit of the doubt in every proposition which the jury pass upon as a matter of fact, which distinguishes the crime from intentional premeditated killing, and makes it a-lesser degree of crime.</p> <p>The burden does not rest upon the piisoner to establish, even to a reasonable probability, the truth of an affirmative defense. If. upon the whole evidence, there is a reasonable doubt of the guilt of the accused, he is entitled to the benefit of that doubt, as well with respect to the degree of the crime as to every essential requisite of that degree, and in these respects the buiden never shifts from the prosecution.</p>

<p>Writ of Prohibition against Police Justice.</p> <p>A writ of prohibition is a proper remedy when a subordinate tribunal either entertains a proceeding in which it has no jurisdiction, or when, having jurisdiction, it assumes to exercise an unauthorized power.</p> <p>It being an extraordinary remedy, it should only be resorted to in cases within its province, and where there exists no mode of redress by more simple and ordinary process, as appeal or certiorari.</p> <p>The above principles applied, and the continuance of the writ of prohibition denied, where it appeared that relator was arrested and convicted on a charge of abandonment, under a warrant issued by defendant as a police justice, and a writ of certiorari to the General Term was thereupon obtained, pending the hearing of which defendant, as such justice, issued another warrant upon a similar charge, and upon substantially the same facts, whereupon the writ of prohibition was served.</p>

<p>Abortion —Declarations and Acts of Co-Conspirator.</p> <p>Upon the trial of the defendant jointly indicted with another for abor- • tion, the prosecution proved that defendant took the girl to’ihe doctor to be operated upon, to produce abortion; that she was operated on when so taken by defendant; that defendant then took the girl to one Mrs. T., with whom he arranged to take care of her until after the delivery; that in the house of Mrs. T. the git 1 was delivered of a foetus. Held, that conversations while the girl was in the house, and before the delivery, between a witness and Mrs. T. in relation to the girl and her state, were admissible against defend ant as declarations of a co-conspirator made in pursuance of me original and concerted plan.</p> <p>Declarations and acts of a co-conspirator, made in furtherance of the prosecution of the common object of the conspiracy or constituting a part of the res gestm cf some act done for that purpose, are the acts and declarations of all, and are admissible against them.</p> <p>A witness for the prosecution testified that when the girl was in the house, and before the delivery, she told Mrs. T. she thought there was something queer about the girl ; thought it was not. all right; and that if the girl was in her house she would send her out. To this defendant made no reply. This evidence was objected to by defendant on the ground that T.’s silence was an admission that there was something wrong about the girl. Held, that these remarks as to the conduct and character of another person did not call for an answer on the part of Mrs. T. But if the view taken by appellant is correct, then the silence of Mrs. T. as to the true condition of the patient was one of the things contemplated in the original plan, and as such admissible against her co-conspirator, the defendant.</p> <p>An answer not responsive to a question, cannot be objected on appeal where no motion to strike the same out was made upon the trial.</p> <p>Ihe granting of a new trial by the appellate court, under § 537 of the Code of Criminal Procedure, whether an exception shall have been taken on the trial or not, on the ground that justice requires it, is a discretionary power not to be exercised unless it is apparent the defendant has been prejudiced by the evidence given, or that its exclusion would probably result in his acquittal.</p> <p>A doctor, a witness for the prosecution, testified that from his examination of the girl and from the history of the case as he got it from the girl when under his care, an abortion bad been performed. This was objected to by the defense as hearsay, and privileged communication, and because it involves the history of the case which had not been disclosed on the trial. -This history had been called for by the prosecution and excluded by the objection of the defense. Held, that defendant could not avail himself of the privilege of the girl, and that while the history of the case should have been given, defendant, having caused its exclusion, could not object that it was not given.</p> <p>Whenever the bodily or mental feelings of a person are material to be proved-, the usual expression of them, made at the time in question, is competent evidence, and in the present case the girl’s statement to the doctor, having been, as he testified, limited to her feelings and condition, was admissible.</p>

Isaac N. Mills, County Judge, presiding, convicting defendant William A. White of the crime of burglary in the third degree. The facts appear in the opinions.

Appeal by the relator, Frank McCoy, alias “Big Frank,” from an order of the special term of July 17, 1885, Hon. Charles Donohue presiding, denying the application of the relator to be discharged from custody upon a writ of habeas corpus.

Appeal by defendant James II. Biley, from a judgment of the Court of Oyer and Terminer of Putnam county convicting him of the crime of murder in the second degree. The facts are fully stated in the opinion.

Appeal by the defendant, Arthur Cipperly, from a judgment of ■ the Court of Special Sessions of Albany, Hon. Anthony Gould Recorder, presiding, of April 23, 1885, convicting him of selling adulterated milk.

William W. Hammond, county judge, presiding, with associates and a jury, convicting the defendant Erastus Newton, of arson in the third degree.

Appeal by John Kelly, defendant, from a judgment of the Court of Sessions, of Steuben county, Hon. Hablo Hakes presiding, of October 6, 1884, convicting him of larceny, and from an order denying motion in arrest of judgment. The facts appear in the opinion.

Appeal by defendant Miguel Chacon, from a, judgment of the Court of General Sessions of New York of November 25, 1884, lion. Frederick Smyth, Recorder, presiding, convicting him of murder in the first degree, and from an order denying him a new trial. The defendant, Miguel Chacon, in November, 1883, began to live with one Maria Williams, the victim of the murder, in the absence of her husband, at No. 128 West Twenty-seventh street, in the city of New York.

<p>Error in sentence—when defendant cannot take advantage of.—Practice on appeal as to.—Penal Code,</p> <p>SECTION 351, SENTENCE UNDER.</p> <p>That the sentence to imprisonment is for a shorter period than the law fixes for the crime of which defendant is convicted, cannot be assigned as error by him, it being to his advantage.</p> <p>Under section 351, Penal Code, in regard to bets, etc., on horse-races, etc.,— which provides that offenses therein specified are “punishable by imprisonment for one year, or by a fine not exceeding $2,000, or both,” —the trial court is vested with a discretion to punish the offender in one or both of the modes specified; and it seems, that imprisonment may be inflicted thereunder for any term not exceeding one year.</p> <p>Where the conviction is unassailed, and the judgment is reversed for error in the sentence, the appellate court should remit the record to the court in which the conviction was had, to pass such sentence as the appellate court directs.*</p> <p>Where the defendant was indicted under section 351, Penal Code, for permitting a building owned by him to be used for the purpose of registering bets, etc., pleaded guilty, and was sentenced to pay a fine of $750 and to be imprisoned for three months, and he thereafter paid the fine,—Held, on appeal, the conviction being unassailed, that the judgment should be affirmed.</p> <p>Where the conviction is valid, an error in the sentence cannot be taken advantage of by habeas corpus.</p>

Appeal by defendant, Charles Osterhout, from a judgment rendered at the March term, 1884, of the Court of Sessions of Rensselaer county, convicting him of assault in the first degree. Defendant was indicted by the grand jury of Rensselaer county, at the Oyer and Terminer, September, 1883, for assault in the first degree.

Hon. Hehky A. Moore, county judge, presiding, with associates and a jury, convicting the defendant Thomas H. Bowles of the crime of rape. The defendant and one Bichard Curran were jointly indicted in said court, December Y, 1883. Defendant pleaded not guilty and demanded a separate trial. Curran pleaded guilty and appeared as a witness for the people. Henricke Ehret was a German woman, who had been in this country for about six months previous to this rape committed upon her.

Amiel Bauman, the defendant, was convicted of assault in the third degree, in the Court of Special Sessions of the city of Brooklyn, and sentenced to the penitentiary. After that conviction, and while he was serving his sentence, he was brought up on a habeas corpus.

Appeal by defendant, Wm. C. Moore, from a judgment of the Court of Oyer and Terminer of Ontario County, Hon. Wm. Bumsey, presiding, of December ‘23,1884, convicting defendant of larceny in the first degree. The indictment found against him October 23, 1884, was as follows: “ County of'Ontario, ss: “The Grand Jury of the county of Ontario by this indictment accuse William 0. Moore of the crime of grand larceny, committed as follows,: That the said William 0.

This is an appeal by the .plaintiff from the judgment and order of the Court of Sessions of Erie comity, reversing a judgment of Andrew J. Dayton, a justice of the peace of the city of Buffalo, designated to attend police station house Wo. 1 in said city, convicting defendant Josephine Miller of keeping a house of ill fame, and defendant Wellie Russell of being an inmate thereof, and fining the defendant Miller $20 and the defendant Russell $5.

Trial of an indictment for larceny in the first degree, in the Court of Oyer and Terminer of New York county, Hon. George C. Barrett presiding. The indictment was found against the defendant, Ferdinand Ward, in the Court of General Sessions of New York, October 19, 1885, and was thereafter ordered to the Oyer and Terminer for trial.

Appeal by the people from an order of the General Term, Fourth Department, of November 2,1883, reversing judgment of the Court of Sessions of Onondaga County, Hon. A. J. Uorthrup, presiding, of February 28, 1883, convicting defendant, Charles E. Poucher, of larceny in the second degree. The facts appear in the report of the case at General Term, 1 N. Y. Grim. Rep. 541.

<p>Appeal by Henry A. Thomsen, defendant, from judgment of the Court of Sessions, of Onondaga County, Hon. A. J. Noetheup, presiding, of November 17, 1883, convicting him •of removing a dead body of a human being from a grave without the authority of law, with intent to sell the same.</p> <p>The facts appear in the opinion.</p>

Appeal by William Clemons from a judgment of the Court of Sessions, Allegany County, convicting him of rape. The offense was alleged to have been committed September i, 1882, by defendant, who was eighteen years of age, upon an adopted daughter of his parents of the age of thirteen years, at the house during their absence. At the time of the alleged commission of the offense, defendant and the prosecutrix were alone in the house. Further facts appear in the opinion.

Appeal, by Alonzo E. Carr, defendant, from the judgment of the Court of Sessions of Erie county, Hon. Wm. W. Hammond, presiding, of February 19, 1885, convicting the .appellant .of .the crime of grand larceny in the second degree. The prosecutors, Sibley & Holm wood, were merchants doing business in the city of Buffalo, where they both resided, and where they transacted all their business.

Appeal by Henry K. Stevens from a judgment of the Court of Sessions of Erie county, Hon. ¥i. W. Hammond, presiding, of April 8, 1885, convicting defendant of larceny in the first degree. Ella S. Comstock was the owner of a house and lot in the city of Buffalo, and she entered into an executory agreement. in writing, to sell and convey the same to the defendant.