Volume 31 — New York Criminal Reports

<p>General Business Law, § 384—Delivery of Coal Without Ticket—</p> <p>Evidence—Instruction to Jury.</p> <p>Where, upon a charge of violating section 384 of the General Business Law, by delivering coal without a delivery ticket and duplicate thereof, having on each in ink or other indelible substance distinctly expressed in pounds the quantity of coal contained in the cart or wagon used in such delivery, with the name of the purchaser and of the dealer from whom purchased, defendant, who did not take the witness stand, was convicted upon testimony insufficient to overcome the presumption of innocen’ce and to connect him with the delivery of the coal, a statement of the prosecuting attorney, that defendant had the right to testify that the tickets put in evidence and which did not comply with the statute were not his, was prejudicial error which was not rendered harmless by an instruction to the jury to disregard it.</p> <p>In the circumstances the court should have instructed the jury in express terms that defendant was not obliged to take the stand as a witness and that his failure so to do created no presumption against him; in this way only could the error be cured.</p>

<p><D Sunday Laws *—Penal Law Section 2145—Moving Picture</p> <p>Shows on Sunday.</p> <p>A moving picture show, operated in a theatre or other building, open to the public upon payment of an admission fee, is a “public show ” within the prohibition of section 2145 of the Penal Law.</p> <p>People v. Eenleb, 22 N. Y. Crim. 551, (127 App. Div. 356) distinguished.</p> <p>( 2.) Same—Complaint.</p> <p>A complaint which charges that defendant violated section 2145 of the Penal Law, by conducting a moving picture show at certain named premises, on Sunday, and did suffer and permit to be conducted and carried on a public show in said premises; that the public were permitted to enter such premises; and that thereby the repose and religious liberty of the community was seriously interrupted, held sufficient to charge a violation of such section.</p>

Defendant moves to dismiss an indictment found against him by the grand jury of Oneida county in January, 1914, for the reason that a former grand jury of Oneida county, on May 16, 1913, also found an indictment against him for the same offense, and that he had entered thereto a plea of “ not guilty.”

<p>'(1.) Extortion—Indictment—Place of Trial.</p> <p>Where an indictment alleged that through fear, induced by threats of defendant, made in Onondaga County, to injure and obstruct the business of a public contractor by hindering his work and preventing its acceptance by public authorities unless said contractor would make a contribution to a political State committee, said contractor, in said Onondaga County, drew and delivered to defendant his check on a bank in Cortland County, in which said contractor was a depositor, to the order of one who was chairman of said committee, held that the subsequent transfer of the check by indorsement and its deposit in the account of the treasurer of said committee in a bank in New York County did not constitute any part of the offense of the extortion of the amount of the check, and such crime was not triable in New York County on the theory that it was committed partly in New York County and partly in another county.</p> <p>[(2.) Same.</p> <p>Held that the indictment alleging the collection by the New York County bank of the check on the Cortland County bank through its correspondent, an Albany County bank, did not show that any acts or effects thereof, constituting or requisite to the commission of the crime of extortion, occurred in New York County.</p>

<p>Seduction Under Promise op Marriage—Demurrer to Indictment Disallowed—Limitations—Absence prom State.</p> <p>Section 2176 of the Penal Law, providing that “ the lapse of two years after the commission of the offense before the finding of an indictment is a bar to a prosecution,” is not a special statutory limitation qualifying the right to presecute and of the essence of such right and an inherent part of the statute under which the right arises, but a simple statute of limitation and as such within the provison of section 143 of the Code of Criminal Procedure that “ * * * no time during which the defendant is not an inhabitant of, or usually resident within, the State, or usually in personal attendance upon business or employment within the State, is part of the limitation.”</p>

<p>(1) Penal Law, Sec. 551—Sending Threatening Letters.</p> <p>Sec. 551 Penal Law prohibits any person from making or knowingly delivering written threats to do an unlawful injury to another or by a writing wilfully to cause annoyance to another—and it is not necessary that the letters be addressed to the person injured, or received by him.</p> <p>(2.) Same—Privileged Communication.</p> <p>Where anonymous letters were sent to the Mayor and Police Commissioner charging a violation the liquor tax law, gambling, etc., by complainant, such letters if proven to be written by defendant were privileged communications if made in good faith, with honest motives and for justifiable ends and in a proper manner.</p>

<p>Pardon by President U. S.—Does not Limit States in Considering Subsequent and Second Offense.</p> <p>A pardon granted as to an offense committed against the United States does not operate as a limitation upon the States-, excluding them from considering the conviction of the prior and pardoned offense against the United States in a prosecution for a subsequent State offense as a second offense.</p>

<p>(1.) Automobile Law—Approaching Street Car—Speed Regulation Ordinance, Section 2.</p> <p>The ordinance requiring a vehicle overtaking or meeting a street car which has stopped to halt S feet therefrom makes the owner while riding in the vehicle liable in like manner as the chauffeur for violation of the ordinance.</p>

<p>Motob Vehicle—Violation of Speed Regulations.</p> <p>Under secton 1 of the ordinance of the City of New York relating to “ speed regulations,” which took effect June 1, 1913, it is permissible to operate any of the vehicles mentioned, in a developed and closely built up section of the city, at a rate of speed not exceeding fifteen miles per hour. If any of the vehicles are operated at a rate of speed exceeding fifteen miles, and up to twenty miles per hour, such rate shall constitute prima facie evidence of a violation of the ordinance. If a person is arrested upon a charge of driving at a rate exceeding fifteen miles, and up to twenty miles per hour, he may rebut the presumption that he drove the vehicle recklessly or negligently. The driving of any vehicle mentioned at a rate of speed exceeding twenty miles per hour constitutes a violation of the section, and a person charged therewith cannot be permitted to offer any evidence to rebut the presumption of. reckless or negligent driving.</p>

<p>(1.) Trial—Magistrate's Court—Defendant’s Right to Counsel.</p> <p>The defendant's right to be represented by counsel in a Magistrate’s Court extends to a summary proceeding before the magistrate, such right being guaranteed by the Constitution of the State of New York (article 1, section 8), which provides that “ in any trial, in any court whatever, the party accused shall be allowed to appear and defend in person and with counsel as in civil action.”'</p> <p>(2.) Same—Code Crim. Pro., Seo. 8, Sub. 2.</p> <p>The constitutional provision is restated in the Code of Criminal Procedure, section 8, subdivision 2, providing that in a criminal action the defendant is entitled “to be allowed counsel as in civil action, but he may appear and defend in person and with counsel.”'</p> <p>(3.) Same—Code Crim. Pro., Sec. 188, Sub. 4, Does Not Apply to Summary Prooeeding Before a Magistrate.</p> <p>The provision of section 188, part 4, Code of Criminal Procedure. - that the magistrate must immediately inform a defendant of his right to the aid of counsel in every stage of the proceeding, relates solely to actions prosecuted by indictment and does not apply to a summary proceeding before the magistrate, and his omission in such a case to inform the defendant of his right to counsel is not error.</p>

<p>(The Rosenthal Murder.)</p> <p>Murder—New Trial—Newly Discovered Evidence.</p> <p>An application was made a few hours before the date of execution for a new trial. Defendants presented nineteen affidavits, the People ten. Said affidavits considered and held that the proffered evidence if given upon the trial would not have changed the result.</p>

<p>Assault.</p> <p>One who claiming to be the owner of personal property, seeks to possess himself of it, while in the custody of a third person, with a strong hand and a multitude of people, held guilty of assault, where he injures the person in possession thereof.</p>

<p>Lakceny—Wagebs.</p> <p>Where defendant was charged with the larceny of a keg of beer which he had delivered to complainant on the understanding that he could have it if he could carry it to a wagon, complainant having paid defendant a dollar which the latter was to keep in any event, and complainant carried the keg to the wagon, and defendant thereafter peaceably repossessed himself of the keg, held that he was not guilty, as the contract was a wagering contract, in violation of section 991 of the Penal Law, and no title to the keg had passed to the complainant by virtue of the contract.</p>

<p>(1.) Maintaining Public Nuisance—Penal Law § 1530.</p> <p>Defendant handled, pasteurized and sold milk in Brooklyn, and on account of the noise, obstructing street, allowing steam to escape, etc., etc., by day and by night, caused annoyance and discomfort to a large number of persons in the vicinity of the milk plant. Defendant claimed that all the acts were necessary to meet the requirements of the resolution of the Board of Health compelling the pasteurization of the milk, Held, that the defendant was guilty of committing and maintaining a public nuisance and of a misdemeanor under Penal Law, Section 1532.</p> <p>X2.) Same.</p> <p>A statute in derogation of private rights must be strictly construed and the direction by the Board of Health that milk of a certain grade be pasteurized does not imply an authority that defendant may adopt any process, in the cheapest and most economical manner, and regardless of any consequences to third persons.</p>

<p>Creme—Sodomy—Conviction fob Sodomy Under Indictment Charging Murder—Claim of Defendant, Jointly Indicted, to Constitutional Privilege as Witness—Rulings of Court Examined— Evidence.</p> <p>Under an indictment for murder in the first degree, charging in the first count that the defendants, in the commission of the crime of sodomy, committed murder, and in the second count charging murder, the defendants may be found guilty of the crime of sodomy, although there was no separate count in the indictment charging said crime.</p> <p>Evidence examined, and held, sufficient to sustain a conviction for the crime of sodomy.</p> <p>Where, after the defendant and another were jointly indicted for murder, the former obtained a separate trial, and the latter when called as a witness was informed that his evidence might be used against him, but that he might assert his constitutional privilege, and he testified, nevertheless, to facts tending to exculpate himself, there was no error: and, even if there were error, it would not avail the defendant.</p>

<p>Appeal from a judgment of the Police Court of Niagara Falls convicting defendant of a violation of section 8a of article % of the Labor Law.</p>

<p>Disorderly Conduct—Disturbance of Religious Meeting.</p> <p>The quiet undisturbed worship of God in a house of worship cannot be diminished even by well meaning and respectable persons. And Sunday is not a proper time nor is a church the proper place for disputatious discussion upon the responsibilities of citizenship and the duties of men.</p>

<p>XL) Municipal Corporations—Use oe Highways—Speed of Automobiles—Statute.</p> <p>Under Highway Law (Consol. Laws, c. 25) § 288, allowing incorporated villages, by ordinance or regulation, to limit the speed of motor vehicles on the public highways, on condition of placing signs conspicuously on each main public highway and filing a copy of the ordinance with the Secretary of State, village authorities cannot regulate the speed of automobiles except on public highways, and hence an ordinance limiting the speed of vehicles “ within the corporate limits of the village ” was unauthorized, and an information and deposition charging a violation of such speed “upon Main street in said village,” without allegation that Main street was a public highway, charged no offense.</p> <p>(2.) Criminal Law—Judicial Notice—Ordinances.</p> <p>The court cannot take judicial notice of the existence of a village ordinance.</p> <p>(3.) Criminal Law—Plea of Guilty—Effect as Waiver.</p> <p>A plea of “ guilty as charged ” to an information for a violation of a village ordinance regulating the speed of automobiles, which charged no offense, while admitting the truth of the averments contained in the information and waiving all objections and defects, provided a conviction thereof was established by the evidence, did not amount to a plea of guilty to any crime whatever; the fact that defendant involuntarily paid a fine to avoid going to jail being immaterial.</p> <p>(4.) Indictment and Information—Waives—Jurisdictional Defect —Plea of Guilty.</p> <p>A plea of guilty waives any defect not jurisdictional, but failure to allege any crime in the information is a jurisdictional defect when the ease must stand or fall on the information alone; and a defendant cannot waive what relates to the jurisdiction of the court.</p> <p>(5.) Municipal Corporations—Ordinances—Violation—Written Information—Necessity.</p> <p>Although the filing of a written information charging the violation of a village ordinance is not expressly required by the Code of Criminal Procedure, a defendant is entitled to an information clearly stating the exact crime with which he is charged.</p> <p>(6.) Municipal Corporations—Use of Highways—Regulation— Statute.</p> <p>Under Highway Law (Consol. Laws, c. 25) § 288, empowering incorporated villages to limit the speed of motor vehicles to not less than one mile in four minutes, and providing that the maintenance of a greater speed for one-eighth of a mile shall be presumptive evidence of a speed which is not careful and prudent, a village may absolutely limit speed to one mile in four minutes: the presumption being simply in aid of the proof and not requiring a speed in fact not careful or prudent to constitute the offense.</p>

William D. Pindar was convicted of grand larceny in the first degree, and, the conviction having been affirmed, he applies for a new trial.

<p>Appeal—When Appellate Court May not Predicate Error upon Magistrate’s Disbelief of Testimony of Witness—Evidence—Violation of Article 3, Section 1, of Public Hack Ordinance—• When Judgment of Conviction Affirmed—When Automobile Public Hack.</p> <p>An appellate court may not predicate error upon a magistrate’s disbelief of the testimony of witnesses on a trial before him.</p> <p>The evidence given on the trial of a charge of violating article 3, section 1, of the public hack ordinance of the city of New York, approved June 2, 1913, which provides that no public hack shall ply for hire upon the streets of the city of New York unless duly licensed, considered, and held sufficient to sustain the charge, and a judgment convicting defendant affirmed.</p> <p>The question of when an automobile is a public hack within the meaning of such ordinance, considered.</p>

<p>Abusive or Insulting Behavior Within Meaning of Section 1458 (3) • of Laws of 1882, Chapter 410—Unlawful Behavior—Attracting Crowd.</p> <p>One who publicly announces that because of the alleged misconduct of another he is going to do a given thing with a view of rebuking and affecting the conduct of such other and thereupon does the thing in the presence of others, his behavior is abusive or insulting within the meaning of section 1458 (3) of chapter 410 of the Laws of 1882.</p> <p>Where a defendant with the purpose of attracting a crowd and to express to it and others disapproval of what he charged to be the conduct of a named individual, whom defendant supposed to be in a designated building, went there accompanied by others whom he had purposely subjected to his will and who submitted to his direction, paraded with them in processional form without official permit on a thoroughfare in front of - such building for about half an hour, wearing crepe, while one of his followers carried a banner with an emblem intended to be suggestive and reproachful, and thereby upwards of a thousand persons were gathered obstructing the sidewalk, while some of them were at variance with others, defendant was properly found guilty of abusive and insulting behavior with intent to provoke a breach of the peace within the meaning of said section 1458 (3) of chapter 410 of the Laws of 1882.</p> <p>Where one occupying no relation toward another giving him the right to reprobate the conduct of such other, by public behavior reprobates the conduct of such other, not for the enforcement of a private right or the setting in motion of a legal process against such other, or the enactment of legislation, and th~ one so reprobated is in private and not in public life and is so reprobated with. respect to a matter of conduct in private life, and the reprobation consists in part of taunting conduct towards such other in a public place, and is therefore liable in such place to be resented by the one so reprobated, or by others in sympathy with him, or acting in his behalf, the behavior evidencing such reprobation is unlawful as tending to a breach of the peace, although the immediate acts done may intrinsically be peaceable and the immediate deportment courteous to those in whose presence it takes place. In such case, the circumstance, if it exists, that the conduct reprobated was reprehensible, does not legalize the act.</p>