Volume 30 — New York Criminal Reports

<p>(1.) Trade-marks, imitations of—Penal Code, Sec. 2354—Demurrer.</p> <p>Where an information charges in substance that the defendant did unlawfully sell, etc., merchandise contained in a package which bore a label alleged to be used by defendant, which label is stated to be in imitation of complainant’s label, and fac-similes of both labels are incorporated in the complaint, held that the language of the section of the Penal Code being unmistakably plain and direct, a demurrer to the information on the ground that it does not fall within the purview of the Statute will be over-ruled.</p> <p>(2.) Same.</p> <p>Where it appears from an information charging imitation of trade-mark, that defendant uses a label of marked similarity to that of complainant, the only real difference being that in one the word “ Eichenkranz ” is used, while in the other the word “ Leiderkranz ” appears, held that a demurrer thereto on the ground that the facts therein set forth do not constitute a crime, will be over-ruled.</p> <p>McInerney, J., dissents.</p>

<p>Weights and Measures (§ 5)—Sale of Coal—Certificate of Weight.</p> <p>Laws 1911, c. 825, § 384, which makes it a misdemeanor to deliver coal, without also delivering to the purchaser a ticket stating the weight thereof, requires the delivery of the ticket, not only where a sale is made to the ultimate consumer, but also where made to a retail dealer.</p>

Application in the name of the People, on the relation of Michael Ianik, against Dennis W. Daly, as Sheriff, for the discharge of relator from custody, under Code Cr. Proc. § 668. Application denied, and relator remanded to custody.

<p>Gaming*—“Bookmaking” distinct from mere making and recording of bets—Words “ with or without writing ”—Penal Law, § 986.</p> <p>“ Bookmaking ” is distinct from the mere making and recording of bets, and the words “ with or without writing,” inserted in section 986 of the Penal Law by chapter 488 of the Laws of 1910, did not change the fundamental requirement that to constitute an offense thereunder there must be bookmaking as it has always been understood.</p> <p>To sustain an information charging a violation of said section as •so amended there must be evidence of such acts and conduct of the defendants as show that by their actual practices they belong to the class of professional gamblers called bookmakers, and where the testimony of detectives, who refer to the defendants as “ bookmakers,” a mere conclusion of the witnesses, fail to show such acts and practices as would authorize a finding that there is probable -cause to believe that defendants have committed the offense charged, .the proceeding must be dismissed.</p>

<p>(1.) Commitment—Defective Information.</p> <p>Although an information in a magistrate’s court is defective, yet, if the evidence taken on the hearing is sufficient to justify the holding of defendant, the defect will be cured.</p> <p>(2.) Indictment and Information *—Joinder of Offenses.</p> <p>Under Code Or. Proc. § 279, providing that, where the acts complained of may constitute different crimes, such crimes may be charged in separate counts of the same information, where the information before the Magistrate’s Court charged defendant with maintaining a public nuisance, the district attorney is warranted in adding counts in the information in Special Sessions'(1) for keeping and maintaining a house of ill fame, and (2) for keeping a disorderly house, if the acts complained of might constitute these different crimes.</p> <p>(3.) Cbiminai, Law—Information—Motion to Dismiss—Evidence.</p> <p>Upon a motion to dismiss an information, evidence before the committing magistrate held insufficient to show that defendant had any connection with the maintenance of a disorderly house.</p> <p>(4.) Cbiminai, Law (§ 238)-—Commitment—Sufficiency of Evidence.</p> <p>A committing magistrate is not required to exact the full measure of proof necessary to secure a conviction, yet a prima facie case must be made out, or such a case that the trial court would not be bound to grant a motion to acquit at the close of the people’s case; there must be reasonable ground for believing that a crime has been committed, and that the defendant is guilty thereof.</p> <p>(5.) Jurisdiction—Committing Magistrate.</p> <p>Although a committing magistrate, because of insufficiency of evideuce, had no jurisdiction to hold a defendant, and hence could confer no jurisdiction on the Court of Special Sessions to try, even by the district attorney filing an information, the Special Sessions in the “ exercise of jurisdiction ” has the sole right to pass upon the question of jurisdiction, subject to review on appeal, if this determination is adverse to defendant.</p> <p>(6.) Indictment and Information—Motion to Dismiss.</p> <p>Where a committing magistrate, because of insufficiency of evidence; had no jurisdiction to hold a defendant, and an information, based thereon is filed by the district attorney in the Court of Special Sessions, the correct practice is by motion to dismiss the information in that court, which will pass upon .the information, evidence, and depositions in the Magistrate’s Court, and, if found insufficient to hold, then the information in this court, based thereon, will be dismissed, provided where the circumstances warrant the court will instead direct defendant to avail himself of the remedy by demurrer or in arrest of judgment.</p> <p>(7.) Criminal Law—Jurisdiction—Former Jeopardy.</p> <p>The setting aside of an information in this court on motion of defendant on the ground that the evidence before the committing magistrate was insufficient to authorize him to hold defendant is not a bar to a further prosecution.</p> <p>(S.) Indictment and Information—Dismissal—Release of Defendant.</p> <p>Under Code Cr. Proc. §§ 313-320, where an information is set aside on motion of defendant because of the insufficiency of the evidence before the committing magistrate, the Court of Special Sessions has the power to direct that the case be resubmitted and to hold the defendant to bail.</p>

<p>Disorderly Persons *—Charter of Little Palls, Seo. 145.</p> <p>The charter of the city of Little Palls contains no provision for the punishment of the acts enumerated in section 145 thereof, and where defendant was convicted as a disorderly person for a violation of said -section and sentenced by the recorder to pay a fine of fifty dollars and stand committed to the county jail until the same was paid, not exceeding one day for each dollar of the fine, the judgment of conviction will be reversed as illegal.</p>

<p>(1.) Evidence—Parol Evidence—Matters not included in lease.</p> <p>Where a written lease of a farm contains no provision concerning the hay on the premises at the time possession is delivered, parol evidence is admissible to show an oral agreement that the lessee could use the hay, but must leave an equal amount at the termination of the lease.</p> <p>(2.) Landlord and tenant (§ 322)—Construction of lease—Implied COVENANTS.</p> <p>Where a farm lease, providing for an equal division of the products, specified that all teams used on the farm should be fed from the undivided products, and required the lessor to furnish 12 cows, but made no provision as to their feed, the cows are to be fed from the undivided hay, and not from the lessor’s share.</p> <p>(3.) Larceny (§ 3)—Intent—Claim of right.</p> <p>Where the lessor of a farm, under the advice of counsel, took away, at the termination of the lease against the lessor’s objection, a load of hay in the daytime and without any attempt to secrete it, and the right to the hay was disputed, the criminal intent necessary to support a conviction for petit larceny is lacking, especially in view of Penal Law (Consol. Laws 1909, c. 40) § 1306, providing that it is a sufficient defense to larceny that the property was appropriated openly under a claim of title made in good faith.</p> <p>(4.) Criminal Law—Province of court and jury—Elements of offense—Intent.</p> <p>Criminal intent is usually for the jury on all the facts and circumstances in the case, but where there are no circumstances which indicate a criminal intent, or where the circumstances proved are consistent with-innocence, a conviction will be reversed.</p>

<p>(1.) Appeal—Return—Affidavits.</p> <p>Code Or. Proc. § 749, provides that a conviction by a Court of Special Sessions may be reviewed by the County Court only by appeal taken as provided in that title. Section 751 requires the defendant to present an affidavit showing the alleged errors complained of. Section 756 provides that the magistrate of the court rendering judgment shall make a return of all matters stated in the affidavit, and file such return, and section 763 provides that the appeal must be heard upon the original return, and sections 757 and 758 provide for compelling such return. Held, that where a return has been made by the justice, and no further return has been required, the court in its determination of the appeal is confined to it, and cannot consider the affidavits, and that affidavits in support of alleged error in fact could not be read when they related to any matter within the knowledge of the justice.</p> <p>(2.) Drunkards (§ 11)—Criminal Prosecution—Question fob Jury.</p> <p>In a prosecution for intoxication in a public place, where six witnesses testified that defendant was intoxicated when arrested, was using disorderly and threatening language, and where net defense was offered the question of intoxication was one of fact for the jury.</p> <p>(3.) Criminal Law (§ 1159)—Appeal—Question of fact—Conclusiveness OF VERDICT.</p> <p>The rules of evidence in civil cases are applicable also to criminal cases, except that in criminal cases the jury is the exclusive judge of all questions of fact.</p> <p>(4.) Criminal Law (§ 655)—Conduct of trial—Power of court.</p> <p>Under Code Civ. Proc. § 2870, providing that a justice of the peace may maintain order in Ms court and punish a disturbance of court, the justice of the Court of Special Sessions into which one came during trial in an apparently intoxicated and dazed condition and started to address the justice properly ordered Mm to sit down.</p> <p>(5.) Criminal Law (§ 864)—Trial—Reading evidence to just.</p> <p>Where the jury, after retiring, notified the justice that they wished to see him, and were brought into open court, and on a question by a juror as to whether any of the witnesses testified positively that defendant was intoxicated, the justice, in the presence of the jury, the defendant, and the attorney for the people, read uncontradicted testimony from the record, without comment and without objection by defendant, the reading of such evidence was not improper.</p> <p>(6.) Examination—Recall of witnesses.</p> <p>It is within the discretion of the court to recall a witness, that he may repeat testimony as to which the jury were in doubt, or to allow new evidence to be taken on a question of fact on which they are in doubt.</p> <p>(7.) Appeal—Judgment of County Court. .</p> <p>Under the express provisions of Code Cr. Proc. § 764, the County Court on appeal from the Court of Special Sessions must give judgment without regard to technical errors or defects which have not prejudiced the substantial rights of the defendant.</p> <p>,(8.) Drunkards (§ 10)—Offenses—■“Public place.”</p> <p>Under Penal Law (Consol. Laws 1909, e. 40) § 1221, declaring that any person intoxicated in a public place is guilty of a misdemeanor, a “ public place ” does not mean a place devoted solely to the use of the public, but a place which is in fact a pubic, as distinguished from a private, a place which is visited by many persons, and is usually accessible to the neighboring public, and a hotel, its porches, and verandas and the street adjoimng it are public places.</p>

<p>Practice—Motion to dismiss action on grounds that proofs did not SHOW REASONABLE CAUSE TO HOLD DEFENDANT.</p> <p>While there may be resubmission to a magistrate in a case where he has held an examination and discharged. People v. Shenk, ante-will not be followed as a precedent, that a ease will be resubmitted for the purpose of taking “ further proofs,” where a magistrate has-held the accused to await trial.</p>

<p>Demurrer by defendant to indictment charging him with the crime of attempt to commit the crime of arson in the first degree.</p>

<p>(1.) Automobile—Violating Speed Law—Motor truck.</p> <p>To operate or drive any vehicle along the streets of New York at a rate of speed “ likely to endanger the life or limb or property of any person ” is an offense under the speed regulating ordinance from which provision no one is exempt.</p> <p>(2.) Same—Exempt class.</p> <p>No specific rate of speed can be prima facie or conclusive evidence of recklessness, the burden of proof is upon the People and the time, place, circumstances and conditions are prime factors.</p> <p>(3.) Same.</p> <p>Defendant with motor truck while carrying U. S. Mail, was speeding through the crowded streets, giving no signals—turning corners at eighteen miles an hour, etc., etc. Held, that he was guilty of violating the speed regulation ordinance.</p>

<p>Husband and Wife—Separation—Alimony—when imprisonment for NON PAYMENT OF, A BAR TO FURTHER PROCEEDING FOB NEGLECT TO SUPPORT CHILD.</p> <p>Where, after a decree of separation has been entered between husband and wife and such decree provided for the payment by the husband and father of a certain amount of alimony for maintenance of the wife and child and the father failed in the payment of the alimony and suffered imprisonment therefor on proceedings for contempt of Court, such imprisonment is not a bar to further proceedings in the Domestic Relations Court of Brooklyn to compel such father to care for his children.</p> <p> Affirmed by Circuit Court, Dilce J. </p>

<p>Motor Vehicle Law—Laws 1911, oh. 491, sec. 289.</p> <p>One who operates an automobile in connection with a business of receiving and transporting, for pay, parcels and other merchandise is thereby constituting a chauffeur under chap. 374, Laws 1910, and is required to wear a chauffeur’s badge, even though he is one of the owners of the motor car.</p>