Volume 32 — New York Criminal Reports

<p>Habeas corpus and certiorari to obtain the discharge of Leonardo Lecesse from imprisonment on a charge of perjury.</p>

<p>Disorderly Person—Husband and wife—Crim. Code, Seo. 899—Re-marriage AFTER FIVE YEARS’ ABSENCE.'</p> <p>Where a wife, whose husband has been absent five years does not use ordinary prudence to find out whether her husband is still living, she enters into a second marriage at her peril, and while a police court cannot adjudge a voidable marriage to be void where the only question before it is whether the complainant is the wife of the second husband it will not sustain a proceeding of a criminal nature to compel such husband to support wife under sub. 1, sec. 899 of the Criminal Code.</p>

<p>Disorderly person—Sec. 899 Code Criminal Procedure.</p> <p>Where from the testimony in the case it did not appear that the wife, complainant, could be a charge upon the public for at least two months, held, that issuance of a warrant and sec. 899 Code Grim. Pro., would be premature.</p>

<p>Trial—Laws 1910, Oh. 659, Sec. 81.—Defendant entitled to be notified OF RIGHT TO COMMUNICATE WITH FRIENDS.</p> <p>The notification of right to communicate with friends and relatives, and the right to have opportunity to do so, required by sec. 81 of the Inferior Criminal Courts Act is required to be given in all cases where the magistrates have summary jurisdiction to convict and impose sentence, but is not required where a preliminary examination of the defendant is being had.</p>

<p>Jurisdiction—Failure to allege acts within State of New York, ob THAT ACTS ALSO CONSTITUTED A CRIME IN A SISTER STATE.-PENAL Law 1530—Injury to health by noxious gases, etc.</p> <p>Where defendant in Bayonne, State of New Jersey, contaminated and infected the air in and around his plant so that the gases, etc., were wafted into Richmond and New York Counties, N. Y., in order for the courts of this state to acquire jurisdiction it was necessary to allege in the indictment and to prove on the trial that the acts of the defendant not only constituted a crime in the State of New York but also constituted a crime of a corresponding nature in the State of New Jersey.</p>

<p>(1.) Violation of City Ordinance—Peddlers’ License.</p> <p>Where a baker residing in another city, having no place of business in Cohoes—delivered bread from his wagon in that city—he violates the ordinance requiring a license to be taken out by peddlers.</p> <p>(2.) Same.</p> <p>Held, that the special grant of power to enact ordinances, to prevent hawking and peddling in any of the public streets, ways or places in the city of Cohoes, or offering and exposing for sale in any of the streets, ways or places, or from dwelling to dwelling in said city of Cohoes of goods, without first obtaining a license therefor, is sufficient to authorize the adoption of an ordinance forbidding the peddling of bread from dwelling to dwelling without a license.</p>

<p>Homicide—Infant Under Sixteen *—Penal Law § 2186.</p> <p>Luciano Rago nine years of age was knocked down and kicked by defendant a boy of twelve years of age in a school yard. Rago died six months later of tubercular peritonitis, Held that defendant Was not guilty of Homicide.</p>

Appeal by the relator, Joseph G. Robin, from an order of the Supreme Court made at the Ulster Special Term and entered in the office of the clerk of the said county on the 13th day of September, 1913, quashing a writ of habeas corpus, and also from an order entered in said clerk’s office on the 7th day of February, 1914, denying the relator’s application upon a renewal, rehearing and reargument.

<p>Elections—Penal Law § 752—Illegal Registration.</p> <p>Persons rendering services in Hospitals in consideration of Board and Lodging are not entitled to vote from such institutions.*</p>

<p>New Trial*—Newly Discovered Evidence—Code Criminal Procedure Sec. 465.</p> <p>Where the suggested new evidence merely impeaches or contradicts the former evidence of certain witnesses introduced by the People—and so weaken the People’s ease by subtraction rather than strengthen defendants’ case by addition—it will not justify a new trial when the People’s case remains supported by the concurring and except for alibi evidence uncontradicted testimony of three unimpeached alleged eye witnesses.</p>

<p>Trial—Laws 1910, ch. 659, Sec. 81.</p> <p>The Magistrate must inform defendant after 'conviction that he is entitled to communicate with relatives or friends, and failure to do so conviction will be reversed and new trial granted.</p>

<p>Election Law—Sec. 162.</p> <p>Section 162 of the Election Law—which provides that the term resident means a person who has a domicile, dwelling, home or abode or any place of stay from which he intends to vote, Reid unconstitutional.</p>

<p>(1.) Public Hack OpdinancE—Sec. 10, Art. 111.</p> <p>Where an unlicensed public hack waited seventeen minutes at Pier with taximeter flag indicating disengaged vehicle but without actual solicitation held not to violate Public Hack Ordinance, Sec. 10, Art. 111.</p> <p>(2.) Same.</p> <p>A taxicab without a public hack license has the like use of the public streets as any other vehicle. If the flag’s position indicates “ vacancy ” that circumstance alone would not sustain a conviction under the ordinance.</p>

<p>Appeal—From Judgment Rendered by Magistrate’s Court—Violation of Public Hack Ordinance—What Should be Offered in Evidence.</p> <p>Where on appeal from a judgment rendered by a Magistrate’s . Court of the city of New York convicting defendant of a violation of article 7 (5) of the Public Hack Ordinance it appears that defendant while awaiting employment did permit a public hack, of which he was the driver, to remain in front of the Normandie Hotel, a place not designated by the mayor in accordance with said ordinance as a public hack stand, the point, that the testimony of the police officer that the place where defendant’s vehicle stood when he was arrested was not a public hack stand was hearsay, and that the list of public hack stands designated by the mayor should have been offered in evidence, comes too late when taken for the first time on appeal.</p>

<p>Indictment—For Criminally Receiving Stolen Property Need Not Name the Thief *■—Establishment on Trial that Property was Stolen—Where Offense is Substantially set out.</p> <p>An indictment for criminally receiving stolen property need not name the thief as it is only incumbent on the people to establish on the trial that the property was stolen.</p> <p>Where an offense is substantially set out in an indictment a matter of fuller description may be omitted where it is to the grand jurors unknown.</p> <p>A description in the indictment of the property stolen as, “ A quantity of suit cases of a number and description to the grand jurors aforesaid unknown,” is sufficient; the size or color of the suit cases or the exact quantity stolen need not be alleged.</p>

<p>(1.) Jurisdiction of Magistrate’s Court—Disorderly Conduct.</p> <p>Disorderly conduct tending to a breach of the peace is one of the offenses for which a person may be tried in a Magistrate’s Court of the city of New York.</p> <p>(2.) Same—Where Defendant Charged with Specific Crime.</p> <p>Where a defendant is charged with the commission of a specific crime, as distinguished from an offense which the Magistrate’s Court of the city of New York has summary jurisdiction to determine in his capacity as a trial justice, he is in duty bound to conduct an examination, and if it appear therefrom that a crime has been committed, and that there is sufficient cause to believe the defendant guilty thereof, to commit him for trial at the Court of Special Sessions, or hold him for the grand jury as the case may be.</p> <p>(3.) Same—Entertainment of Charge of Disorderly Conduct.</p> <p>An information charging that defendants were in a certain street using threatening, abusive and insulting behavior, with intent to provoke a breach of the peace, and whereby a breach of the peace might be occasioned, and that said defendants did then and there set upon, strike and pummel deponent injuring his face without any cause or provocation on the part of deponent, does not allege a criminal assault in that it does not allege that the striking was unlawfully and wrongfully committed, and does not charge defendants with the crime of assault. Held, that the magistrate properly entertained and determined the case as a charge of disorderly conduct.</p>

Two motions made by the defendant, Edward M. Grout, came on to be heard at the Special Term for Contested Motions on November 10, 1914. The defendant moved that the first indictment found against him and returned to the County Court of Kings County on October 11, 1911, be deemed to be superseded by the second indictment found against him on December 29, 1913, and that the second indictment either be brought to trial immediately or be quashed.

<p>(1.) Public hack obdinance—Sightseeing cab.</p> <p>Sightseeing cars -are included in the definition of “public hack” and if unlicensed are forbidden to solicit public patronage from the streets.</p> <p>(2.) Same.</p> <p>Defendant Greene, the starter of the sightseeing car, was charged with “ soliciting passengers for a public hack, etc.,” not being a driver sitting upon the driver’s box. Held, that upon the evidence he could not be found guilty of soliciting public patronage.</p> <p>(3.) Same.</p> <p>Defendant Stephenson, the driver, was talking with one of the lecturers some distance away while Greene accosted people. Held, that he was guilty as he was there as the operator or driver of that particular car, and it was his duty to prevent any act in regard to the vehicle^ which the ordinance forbids.</p>

<p>Pbocedube—Conviction on trial of indictment fob second offender —Question as to prior conviction.</p> <p>Where defendant was convicted upon the trial of an indictment against him as a secopd offender he may not, on motion for a new trial made on the ground that he has newly discovered evidence which will establish that at the time of his prior conviction he was not sixteen years of age, attack the validity of such conviction, the only question upon his trial as a second offender being whether or not there was such prior conviction.</p>

<p>(1.) Constitutional law—City magistrates—No jurisdiction to TRY MISDEMEANORS-INFERIOR CRIMINAL COURTS ACT, § 95.</p> <p>Section. 95 of the Inferior Criminal Courts Act (Laws of 1910, chap. 659) in so far as it attempts to confer jurisdiction upon city magistrates to summarily try and convict in cases of misdemeanor violates the constitutional provision that the right of trial, by jury shall remain inviolate.</p> <p>(2.) Courts of special sessions—Conviction of defendant fob making ILLEGAL SALE OF HEROIN—SANITARY CODE, § 182.</p> <p>A judgment rendered by a justice of the Court of Special Sessions of the city of New York, sitting as a magistrate, convicting defendants of making an illegal sale of heroin in violation of section 182 of the sanitary code is illegal and will be reversed and defendants discharged.</p>

<p>(1.) Automobile—Villages—Violation of ordinance.</p> <p>On trial for a violation of a village ordinance the prosecution must prove not only that such ordinance was duly adopted but also that there has been a compliance with all the requirements of law pertaining to the enactment of village ordinances.</p> <p>of regulation of speed of motor vehicles—(2.) Same—Publication When ordinance is of no force.</p> <p>After proof that a proposed ordinance regulating the speed of motor vehicles within the limits of a village had been filed with the secretary of state, as required by section 288 of the Highway Law, more than thirty. days before defendant’s alleged violation of said ordinance and that it was published in a newspaper in the village for at least twenty-nine days, and no evidence being offered to show that said newspaper was the official village paper, or that it was the only newspaper published in the village, or that copies of the ordinance were posted in at least three public places as required by the Village Law, the ordinance is of no force and effect and defendant’s conviction thereunder must be set aside and his fine of fifty dollars remitted.</p> <p>(3.) Same—Highway law, § 290(9).</p> <p>by section 290(9) of the Highway Law “any person violating any of the provisions of any section of this article * * * for which violation no punishment has been specified, shall be guilty of a misdemeanor punishable by. a fine of not exceeding twenty-five dollars.” Held, that a fine fixed by said ordinance at a sum not over fifty dollars was illegal and beyond the power of the court to impose.</p>

<p>Abandonment—By defendant of • his child—Indictment—When MOTION TO DISMISS INDICTMENT GBANTED-PENAL CODE, § 418.</p> <p>Where, on the trial of an' indictment under section 418 of the Penal Code charging defendant with abandonment of his child in destitute circumstances, it appeared that the mother rented the house where the family lived, that both she and defendant contributed to the support of the family, and defendant goes away, and the child, who was under the age of sixteen years, testifies to an eight-room house nicely furnished with every necessary convenience and that she has had all the necessary food, shelter and clothing she could ask for and was perfectly happy, a motion to dismiss the indictment, made at the close of the people’s case on the ground that it had not been shown that the child in question was in destitute circumstances, will be granted.</p>

<p>Habeas Cobptjs—When relator entitled to be discharged from custody—Bastardy proceedings—Code cbim. pro., §§ 843, 844.</p> <p>Where relator, upon being arrested and brought before a magistrate upon a warrant charging him with being the putative father of a bastard, offers to give the undertaking required by section 844 of the Code of Criminal Procedure, it is the duty of the magistrate to take the undertaking; and where he refuses so to do on the ground that the warrant was not indorsed by the magistrate who issued it as provided by section 843 of said Code which requires that the magistrate issuing the warrant must by indorsement thereon" direct the sum in which defendant shall give security, relator is entitled to be discharged from custody on habeas corpus.</p>

<p>Contempt—Witness—Refusal to appear before investigating commission, laws 1892, chap. 671-1909, ch. 26.</p> <p>The Common Council of Cohoes authorized the Mayor to investigate certain charges in the daily press—Defendant failed to appear as a witness in response to a summons and a warrant of attachment was issued. Held, the resolution authorizing the Mayor to appoint the Committee not having been approved by the Mayor in the manner prescribed by the Charter by indorsement of approval or veto upon a transcript thereof and three days not having elapsed after its passage, before the application for the summons requiring defendant to appear it was void and there was no obligation upon defendant to obey it.</p>

<p>Trial—Preliminary examination before magistrate—Defendant entitled TO BE SWORN AND TESTIFY IN HIS OWN BEHALF.</p> <p>A city magistrate refused to allow a person charged with crime of assault in third degree, to be sworn as a witness on his own behalf. • Held, error, but the defendant should not be discharged on habeas corpus but be sent back to magistrate for further examination.</p>

<p>(1.) Fortune Telling—Code Grim:- Pro., § 889—Astrology.</p> <p>A prophecy of future events involving a negative or affirmative deception by a person professing to tell fortunes constitutes a violation of Section 889 Code of Criminal Procedure.</p> <p>(2.) Same—Astrology.</p> <p>But where defendant prepares a astrological horoscope of one applying therefor and gives the relative position of planets at the time of her birth basing the horoscope on the well known and fixed science of astronomy it is not a violation of law.</p> <p>(3.) Same—Palmistry.</p> <p>For a palmist to tell that a certain line in the palm of the hand is the life line, etc., is not a violation of the law.</p>

<p>(1.) Indictment—Pleas in abatement.</p> <p>An indictment is not invalidated by the fact that a deputy clerk placed some of the names in the jury box from which the grand jurors were drawn. A plea in abatement on this ground is especially untenable where there is no allegation that the name of any one of the grand jurors who acted had been placed in the box by the deputy clerk.</p> <p>(2.) Grand Jury.</p> <p>A grand jury may conclude its labors after the expiration of one term and the commencement of another.</p> <p>(3.) Same.</p> <p>The presence of a stenographer in the grand jury room during its sessions does not vitiate an indictment.</p>

<p>Sanitary code, section 80-A.—Muzzling dogs.</p> <p>The Board of Health should use all reasonable means to check disease and to safeguard the public against any peril to life or-health throughout the city and an ordinance forbidding an unmuzzled dog to be led by a leash is a reasonable provision.</p>

<p>Good character—Defendant in criminal action entitled to have PREVIOUS GOOD CHARACTER CONSIDERED—WHEN JUDGMENT OF CONVICTION REVERSED.</p> <p>The defendant in a criminal case is entitled to have his previous good character considered with a view of creating a reasonable doubt as to his guilt of the crime of which he stands charged.</p> <p>Where in a city Magistrate’s Court one defendant was charged with vagrancy in that she knowingly and wilfully solicited a police officer for the purpose of prostitution in a tenement house in violation of Consolidated Laws of 1909, chap. 99, section 150, as amended in 1913, and the other defendant was charged with vagrancy in that she occupied and maintained a house of prostitution in violation of the same statute, the refusal of the magistrate to hear witnesses present in court who were ready to testify as to the good reputation of defendants is prejudicial error calling for the reversal of a judgment of conviction.</p>

<p>Appeal from a judgment of conviction rendered in a city Magistrate’s Court.</p>

<p>Appeal from a judgment of conviction rendered in a city Magistrate’s Court.</p>

<p>(1.) Infant—When act not quasi-cbiminal.</p> <p>The term gMasi-criminal is confined to acts that while not in themselves criminal yet incur some penalty or forfeiture, as the violation of a municipal ordinance. Where a girl fourteen years of age associates with dissolute persons and finding herself pregnant lives with a person who was indicted for rape, while her conduct might justify state interference for her protection, it was neither criminal nor gwasi-eriminal, nor did she incur penalty or forfeiture.</p> <p>(2.) Same—Res ad judicata.</p> <p>The decision of the magistrate committing her to a House of Mercy was not res adjudicata.</p> <p>(3.) Same.</p> <p>The father having abandoned his family for six years, and the mother having to go out to work to support herself. Held, that the infant should not be surrendered to her parents.</p>