Volume 33 — New York Criminal Reports

<p>Banking Law, Seo. 314—Usury *—Loan disguised as sale of diamond ring.</p> <p>Complainant K. applied to defendant for a loan of $100, who informed him that he had no money to loan, hut he would sell him a diamond ring which he could pawn for that amount, which was done; K. agreeing to pay $295 in monthly installments, and K. pawned the ring for $125. The fair price of the ring being $180. Held, that it was. not a sale of goods but a plain and palpable attempt to evade the statute by an old and worn out contrivance.</p>

<p>Jurisdiction—Bronx County Court.</p> <p>The County Court of the Bronx has no jurisdiction to entertain an appeal from a judgment of commitment made by a Justice of the Court of Special Sessions sitting in the Children’s Court for the County of the Bronx.</p>

<p>(1.) Malicious Libel—Picture—Penal Law, § 1340—Indictment.</p> <p>An indictment under section 1340 of the Penal Law, which charges defendant with the publication of a malicious libel, consisting of a picture, a copy of which is set out in the indictment, is sufficient, it being for the jury to say whether or not the picture is a libel within the statutory definition.</p> <p>(2.) Same—Question eor jury.</p> <p>An allegation that the man shown in the picture is a representation and figure of N puts in issue whether or not the picture is a portrayal and likeness of N, and that means a recognizable likeness of N, and that is a question for the jury.</p> <p>(3.) Same.</p> <p>The fact that on the same page with the picture and stated to be explanatory of it is printed an article in which no mention was made of N by name is no defense, as whether the picture explained or unexplained is or is not a libel of N is still a question for the jury.</p> <p>(4.) Same—Penal Law, Sec. 1343.</p> <p>Section 1343 of the Penal Law, which provides “ To sustain a charge of publishing a libel, it is not necessary that the matter complained of should have been seen by another. It is enough that the defendant knowingly displayed it, or parted with its immediate custody, under circumstances which exposed it to be seen or understood by another person than himself,” is a sufficient answer to a contention that the indictment should allege that the piture was shown to some one who knew N.</p> <p>(5.) Same—Penal Law, Sec. 1340.</p> <p>An indictment for libel, a misdemeanor under section 1341 of the Penal Law, which charges in the words of section 1340 of said law that the defendant “ did unlawfully and wickedly print and publish * * * a certain false, scandalous, malicious and defamatory libel,” sufficiently charges criminal intent.</p> <p>1(6.) Same—Duplicity.</p> <p>An indictment charging that defendant did publish a certain malicious libel “ by then and there printing and publishing the same,” in a certain magazine “ then and there edited, printed and published by ” defendants is not bad for duplicity as charging the commission of the crime in more than one form in the same count; the allegation that defendants edited the magazine being merely a statement of the evidence whereby their responsibility for the publication by the means and in the manner charged might be proved under section 1344 of the Penal Law, and the allegation that the magazine was edited by defendants does not add a different manner or means whereby it is charged that the libel was committed.</p> <p>(7.) Same—Code Cbim. Peo., §§ 275, 276.</p> <p>The indictment considered upon a demurrer thereto and held to meet all the requirements of sections 275 and 276 of the Code of Criminal Procedure.</p>

Appeal by the defendant, Frank Maestry, from a judgment of the Supreme Court, Criminal Term, rendered against him on the 10th day of November, 1913, convicting him of the crime of murder in the second degree, and also from an order entered in the office of the clerk of the county of New York on the 10th day of November, 1913, denying his motion for a new trial.

<p>Public health law, sec. 153.</p> <p>The deposition before the Magistrate being superseded by the District Attorney’s information it cannot be challenged by a demurrer before the Court of Special Sessions, Defendant should have moved to dismiss the information because of the insufficiency of evidence.</p>

<p>Liquor Tax Law—Sub. 1 and 2, Section 8.</p> <p>Defendant sold whiskey which was drunk on the premises, he holding only a second class certificate permitting the sale on the premises Held, that a court charging the sale, “to be drunk on the premises without the defendant having paid the Excise tax assessed by the Liquor Tax Law upon the business of trafficking at and upon the said premises, of liquors to be drunk thereon, as provided in sub. 1, of sec. 8, of the Liquor Tax Law,” was sufficient.</p>

<p>(1.) Certificate of reasonable doubt—Duty of judge.</p> <p>A judge has a duty to discharge not alone to the People, but to the defendant as well. His duty is not to secure a conviction but to assure both People and defendant that justice is being rightly administered.</p> <p>(2.) Same.</p> <p>After the District Attorney had cross examined the prisoner, charged with grand larceny and receiving stolen property, at great length, the Judge interrupted the cross examination and cross examined the prisoner for twelve pages of the record, to show that he was testifying falsely. Seld, that a certificate of reasonable doubt should be granted for such action by the Judge.</p>

<p>Res judicata—Eire escapes in tenement houses.</p> <p>A former decision as to fire escapes of particular property, in a criminal court, where the issues of law and fact were identical and the actions between the same parties or their privies, held to be res judicata.</p>

<p>Appeal by the defendant from a judgment of conviction rendered in the seventh district Magistrates’ Court on the 8th day of February, 1915, convicting the defendant of being a disorderly person under subdivision 3 of section 899 of the Code of Criminal Procedure, which reads as follows: “ The following are disorderly persons * * * 3. Persons pretending to tell fortunes, or where lost or stolen goods may be found.”</p>

<p>Labob Law sec. 79c-3—Bolted doob between two separate factories.</p> <p>A bolted door between two separate factories adjacent to each other, is a violation of Sec. 79c~3 of the Labor Law, which provides that all means of egress shall be maintained in an unobstructed condition, and that no door leading into or out of any factory or any floor thereof shall be locked, bolted or fastened during working hours.</p>

<p>Conducting business under fictitious name—Penal law, sec. 440. Where a restaurant is run under the assumed name of the “ Bristol ” no certificate being filed or the real name of the proprietor being advertised or posted, it is a violation of section 440, Penal Law, in the use of a fictitious name.</p>

<p>Appeal—From judgment of conviction in magistrate’s court—Inferior. CRIMINAL COURTS ACT, §§ 81, 112.</p> <p>Where on appeal from a judgment of conviction in a Magistrate’s Court of the city of New York it appears that defendant, being represented by counsel, had a fair trial, was properly convicted and sentenced, and not only had, but availed herself of, the opportunity of communication with others as she desired, the failure of the magistrate to observe the requirements of section 81 of the Inferior Criminal Courts Act (Laws 1910, chap. 659) did not affect defendant’s substantial rights and was not sufficient to call for a reversal of the judgment of conviction.</p>

<p>Trial—Failure of magistrate to inform defendant of right to communicate WITH FRIENDS—CODE CRIM. PRO., § 768.</p> <p>Where defendant was arrested at ten minutes after ten P. m., was put on trial immediately upon arraignment the same evening, and forthwith found guilty, the failure of the magistrate to inform him of his right to communicate with relatives or friends as provided by section 81 of the Inferior Criminal Courts Act deprived defendant, who was not represented by counsel, of a fair trial, and the judgment of conviction will be reversed and a new trial ordered pursuant to section 768 of the Code of Criminal Procedure.</p>

Motion to dismiss indictment on the ground that the grand jury finding the indictment had no jurisdiction of the offense charged.

<p>Motion for a certificate of reasonable doubt.</p>

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

<p>(1.) Penal Law, Section 439—Corruptly influencing Agent, Employee ob Servant.</p> <p>The second division of Section 439, Penal Law, forbids a purchasing agent from receiving from a seller a commission on a sale made through the purchasing agent acting on behalf of his employer, and likewise unqualifiedly forbids such sellers giving or offering such commission to such purchasing agent. The matter of knowledge or consent of the employer is eliminated from the transaction, is not alleged in the information, and need not be proved by the people.</p> <p>[(2.) Same—Constitutional Law.</p> <p>Section 439 of the Penal Law is Constitutional. It is not class legislation and restricts no right of cotnract.</p> <p>¡(3.) Same—Information.</p> <p>A lack of knowledge is not a necessary element of the crime and need not be alleged or proved, and is no defense to the information.</p> <p>(4.) Same—Tips.</p> <p>Tips to Barbers to stewards on ocean steamships, to waiters in Hotels and restaurants and to porters on Parlor cars are within the knowledge of all those who have the least familiarity with these branches of business and do not fall under the provisions of this law.</p>

<p>Definition of appellate jurisdiction of court of general sessions of CITY AND COUNTY OF NEW YORK—APPEAL—CODE CRIM. PRO., §§ 749-772.</p> <p>Under sections 749-772 of the Code of Criminal Procedure which confer and define the appellate jurisdiction of the Court of General Sessions of the city and county of New York an appeal thereto from a judgment of conviction rendered in a Magistrate’s Court must be heard upon the return of said court and inasmuch as the magistrate is required to make return of all the matters stated in the affidavit upon which the appeal is allowed said affidavit though not technically a part of the return must be considered upon the appeal.</p> <p>The affidavit contemplated is, however, one showing errors appearing upon the face of the proceedings or conviction or commitment complained of and not one setting forth extraneous matter to which the magistrate in the nature of things cannot make return, and affidavits on applications for the allowance of appeals purporting to set forth matters extraneous to the record as grounds of appeal are improperly received and cannot be considered, and the court cannot rightfully reverse where the record, including the affidavit upon which the appeal was allowed and the magistrate’s return to it, does not disclose upon its face an erroneous decision or determination of law or facts upon the trial, or a sentence which should be modified.</p>

<p>Abandonment of child bt father.</p> <p>An application to have defendant adjudged a disorderly person and to compel him to support his infant child, pursuant to section 685 of the Greater New York Charter, granted where it appeared that said child was born five months after the defendant had left the child’s mother and commenced an action for absolute divorce against her and two months after he had obtained an interlocutory decree of divorce, no mention of said child being made in the entire record of the divorce proceedings, it appearing that the defendant is able to support the child, but that the mother, in whose custody the child has remained since birth, is unable to support it.</p>

<p>Appeal from a magistrate’s court—Suspension of sentence—When COURT OF GENERAL SESSIONS CANNOT SUSPEND SENTENCE AND PLACE ON probation—New trial—Tenement house law—Inferior criminal courts law—When special or local law will not be deemed REPEALED BY A GENERAL LAW.</p> <p>A determination upon a plea of guilty involves neither an issue of fact nor of law and is not a trial.</p> <p>Upon the hearing of an appeal from a Magistrate’s Court the Court of General Sessions under its authority to render the judgment which the court below should have rendered cannot suspend sentence and place defendant on probation.</p> <p>A suspension of sentence and a placing on probation are not the rendition of a judgment, but the deferring thereof.</p> <p>The Court of General Sessions can suspend sentence and place on probation only where a new trial can be had and is had before it.</p> <p>A lawful sentence considered apart from a conviction cannot be annulled or set aside.</p> <p>While the Court of General Sessions may modify a sentence the lawfulness of which is not questioned, its power is limited to a modification, and it can only remand for recommitment where the original commitment was unauthorized.</p> <p>The amendment (Laws of 1915, chap. 282) to section 150 of the Tenement House Law does not repeal by implication section 89(5) of chapter 655 of the Laws of 1910 known as the Inferior Criminal Courts Act as amended by Laws of 1912, chap. 460; Laws of 1913, chap. 372, and Laws of 1914, chap. 454.</p> <p>A special and local law will not be deemed to be repealed by implication by a general law where (1) a reason may be assigned for the continuance of the special and local law in the particular locality; (2) where at the time of the final amendment to the general law the legislature upon consideration of the special law left it unchanged, and (3) where the special law is a part of a system of local judicial administration not in contradiction to the general law dealing directly with the subject of the special and local law.</p>

<p>Disorderly persons—Code crim. pro., § 899 (4)—Guilty knowledge ok DEFENDANT ESSENTIAL TO CONVICTION.</p> <p>The test between crimes in which guilty acts alone constitute the offense and crimes in which knowledge or intent is essential is whether the legislature has prohibited certain acts and placed the liability on certan persons for the occurrence thereof, or whether the statute prohibits a course of conduct and places the liability upon all who undertake it.</p> <p>Section 899(4) of the Code of Criminal Procedure, which provides, that keepers of bawdy houses or houses for the resort of prostitutes, etc., are disorderly persons, prohibits a course of conduct, and acts must be shown to have been committed with the knowledge of defendant charged with a violation of said section before his conviction thereunder can be sustained.</p> <p>Such knowledge may be proven by circumstances from which it may be inferred and the defendant may not close his eyes to matters passing about him and thus evade the imputation of actual knowledge.</p> <p>Evidence considered, and held insufficient to show that defendant, the-proprietor of a hotel, with knowledge allowed prostitutes to resort thereto at times when he was not present or knew of their visits to the-hotel.</p>