Volume 34 — New York Criminal Reports

<p>Epileptic—When not criminally liable—When coNviction of offense OF DISORDERLY CONDUCT REVERSED.</p> <p>It is only when an epileptic is unconscious of the act he is committing that he is not criminally answerable.</p> <p>Where, according to the undisputed medical testimony, defendant at the time he committed an act of disorderly conduct tending to a breach of the peace was suffering from an attack of epilepsy, his conviction of the offense must be reversed, though sentence was suspended, on the ground that he should have been discharged.</p>

<p>Appeal from a judgment rendered by a City Magistrate’s Court.</p>

<p>Bond—When judgment upon forfeited recognizance may be vacated AND CASH BAIL ORDERED RETURNED.</p> <p>Upon an application to vacate a judgment entered upon a forfeited recognizance, and to compel the return of the cash bail applied to the payment of said judgment, the applicant, in the absence of the certificate of the district attorney that the People have lost no rights by reason of the failure of the surety to produce his principal, must affirmatively show such fact.</p> <p>The mere fact that after a fugitive is captured or surrenders, he is acquitted upon trial, does not of itself prove that the People lost nothing.</p> <p>After a judgment entered upon a forfeited recognizance has been collected or cash bail has been paid over to the comptroller in satisfaction of the judgment and mingled with the city’s funds, it cannot summarily be ordered to be paid back.</p> <p>Hence, where an accused person after being released upon a cash bail failed to appear and the bail was forfeited, and the amount thereof turned over to the city comptroller and the accused thereafter surren- . dered himself, and the complaining witness so modified his testimony that a discharge was granted, an application by the surety to recover the amount of the cash bail should not be granted, where it does not satisfactorily appear that the People lost nothing by the failure of the accused to appear.</p>

<p>(1.) Public Health Law, Sec. 246—Narcotics—Laws 1915, Ch. 327, Sec. 246—Heroin.</p> <p>Defendant, a duly licensed physician, had been treating D. for three months for drug addiction and examined him July 19, 1915, and on July 20 delivered heroin to his wife as a part of his treatment for her husband and entered the husband’s name in his book instead of the wife’s. Held that the physician is not required to make a physical examination each time the drug is delivered.</p> <p>(2.) Delivery to messenger of drug.</p> <p>A bona fide delivery of heroin to the wife by a physician who had examined the husband the day before—is not a violation of the statute.</p> <p>(3.) Same—Entry in physician’s record.</p> <p>The recording of the name of the patient by the physician, who has made an examination within a reasonable time, is a substantial compliance with the law although he delivered the drug to an agent or a messenger from his patient.</p>

Appeal from a judgment of the Court of General Sessions of the Peace in and for the county of New York rendered on the 2d day of July, 1914, convicting, the defendant of receiving stolen goods, and also, as stated in the notice of appeal, from orders entered on the same day denying a motion to set aside the verdict and for a new trial,

<p>Disorderly conduct—Conviction fob—When conviction warranted.</p> <p>Whether it is disorderly conduct for one to greet another by placing the end of his thumb against the tip of his nose at the same time extending and wiggling his fingers depends upon circumstances.</p> <p>The enactment of such a nasal and digit drama tends to show a design to endanger strife, and where the evidence shows that defendant had committed the same offense toward complainant on previous occasions, thus indicating a determination to annoy him to the limit of patient endurance, his conviction for disorderly conduct is warranted and will be affirmed.</p>

<p>Abbest—Without warrant—Jurisdiction—When judgment of conviction NOT INVALID—City COURT OF BUFFALO.</p> <p>Where defendant, arrested without a warrant, was convicted in the City Court of Buffalo on a misdemeanor charge of keeping a disorderly house in violation of the city ordinances, of which offense said court has in the first instance exclusive jurisdiction to hear and determine, the judgment of conviction is not invalid because defendant’s arrest was for a misdemeanor not committed in the presence of the officer making the arrest, and such conviction will be affirmed on appeal.</p>

<p>Tenement House Law, § 150(4)—When person deemed a vagrant— Evidence—When conviction in Magistrate’s Court reversed— Statutes.</p> <p>In order to sustain a conviction for a violation of section 150 (4) of the Tenement House Law, as amended in 1913, which declares that a person who “ knowingly resides in a house of prostitution or assignation or ill-fame of any description in a tenement house,” shall- be deemed a vagrant, it must be shown that defendant has knowledge that the house is a house of prostitution; such knowledge may be proven either by direct evidence or by circumstances from which such knowledge may be inferred.</p> <p>Where defendant was convicted in a Magistrate’s Court of a violation of such statute, and the only evidence was that of a police officer who testified that he called with another man by whom he was introduced to this defendant and another woman; that the other man then left; that he, the officer, had a conversation about the weather with the other woman, and then was solicited and taken by her into another room; that the other woman there offered to commit an act of prostitution, after which he placed the other woman under arrest, and he further testified that this defendant was present at the time of the conversation before he went into the other room but that he had no conversation with this defendant and that this defendant took no part in his conversation with the other woman, and it appears that after the arrest of the other woman the defendant was asked by the officer whether she lived in the premises and she said that she did, and had just paid the fourth month’s rent, and she was thereupon placed under arrest, the conviction will be reversed and a new trial ordered.</p>

<p>Defendant was convicted of violation of certain provisions of the Game Laws by a Court of Special Sessions of the town of Whitestown after trial before the court without a jury, and appeals therefrom.</p>

<p>Judgments—Convicting defendant of violation of city obdinange— evidence—Automobiles .</p> <p>Where the evidence shows that defendant, pursuant to a method of conducting business predetermined by a corporation which rented automobiles and employed him, allowed a car in his charge to remain in the street in front of the company’s office in the city of New York, and while it was so standing traffic was blocked in such manner as to interfere with the passage of vehicles, a judgment convicting defendant of a violation of an ordinance which provides: “ No vehicle shall be allowed to remain upon or be driven through any street so as wilfully to blockade or obstruct the traffic of that street,” will be affirmed.</p>

<p>Jurisdiction—Of City Court of Geneva—New trial—Criminal law— Newly discovered evidence.</p> <p>The City Court of the city of Geneva has no jurisdiction to grant a new trial in a criminal case tried before it upon the ground of newly-discovered evidence.</p>

<p>¡(1.) Grand jury—Inspection of minutes.</p> <p>On a motion to inspect the minutes of a grand jury the attention of the court may be called to the testimony given by witnesses at other proceedings as pertinent to the application, and as bearing upon his application he may show to the court what the witnesses have, up to the time of being called before the grand jury, said with respect to the subject matter of the indictment.</p> <p>(2.) Accomplice—Who is.</p> <p>One cannot be made an accomplice by the mere fact that he is asked by another for a bribe, but his subsequent conduct upon the making of such suggestion may indicate that he is or is not an accomplice.</p> <p>¡(3.) Grand jury—Evidence when insufficient must be tested on APPEAL AFTER GRANTING OF MOTION TO INSPECT MINUTES.</p> <p>As a practical matter the only manner in which a defendant can take advantage of his legal rights if the evidence before the grand jury is insufficient to sustain the indictment found against him is to test the question upon appeal from the final judgment. However, the sufficiency of the evidence before the grand jury can only be so tested after the granting of a motion to inspect the grand jury minutes, and the determination thereupon of a motion to dismiss the indictment.</p>

<p>Magistbate’s Coubt—Failtjbe to seduce testimony to wetting— Evidence—Appeal.</p> <p>The failure of a magistrate on a trial for assault in the third degree to reduce the testimony to writing calls for the reversal of a judgment of conviction though the return on appeal shows that the omission was by agreement or consent of counsel.</p> <p>If such an agreement be authorized and binding its terms should be unequivocal and evidenced by a writing signed by the parties or a stipulation made in open court, and as the appellate court might put a different construction on acts and words returned as an agreement or consent it should require a full statement of the acts and words from Which the magistrate concluded that such an agreement was made.</p>

<p>(1.) Penal Law, Sec. 665, Sub. 4.</p> <p>The verbal demand of an attorney acting in presence of a stockholder requesting an inspection of the stockbook of a corporation is sufficient, and refusal to allow such inspection is a wilful violation of Sub. 4, Sec. 665, Penal Law.</p>

<p>Disorderly conduct—When conviction for, reversed—Police—Arrest— Criminal law.</p> <p>Where a magistrate finds that defendant did not interfere with pedestrians at a railroad station, as sworn to by the police officer who arrested him, his conviction for disorderly conduct in calling the officer a vile name on the way to the station house will be reversed.</p> <p>Any remark however insulting addressed by a defendant while under lawful arrest to the police officer making the arrest, in the absence of proof that the remark was made in a loud voice or public manner, cannot be deemed disorderly conduct tending to or intended to provoke a breach of the peace.</p>

<p>Constitutional law—When statute is constitutional—Provisions of LAWS OF 1915, CHAP. 579, § 4, KNOWN AS THE “PAROLE BOARD ACT.” Section 4 of the statute known as the “Parole Board Act” (Laws of 1915, chap. 579) which provides “The duration of the commitment of any person to a workhouse shall be for a definite period not to exceed six months, provided, however, that if it shall become known to the court through competent evidence, at any stage of the proceeding prior to the imposition of sentence that any person convicted of * * * public prostitution, soliciting on streets or public places for the purpose of prostitution, * * * has been convicted of any or each of these offenses two or more times during the twenty-four months just previous, or three or more times previous to this conviction, then the court shall commit such offender to a workhouse, of the said department of correction in said city for an indeterminate period, which shall not exceed two years,” is constitutional, and one may be convicted thereunder as a second offender though the first offenses were committed prior to the enactment of the statute.</p> <p>After defendant had been convicted under said statute for disorderly conduct in soliciting upon the streets for the purposes of prostitution, but before sentence was imposed it appeared by her admissions made to counsel that she had been convicted six times for the same or similar offenses prior to the time the statute went into effect. On appeal from the judgment of conviction, held:</p> <p>That the statute was constitutional.</p> <p>It appearing that upon the proceedings had after defendant was pronounced guilty and before sentence she received no notice whatever that those proceedings were being had under the provisions of the statute to determine whether or not she should receive an increased punishment as a second offender, but was removed to have her finger prints taken without such notice, she was not accorded due process of law upon the proceedings to determine whether or not she was a second offender, but it appearing by her prior record that she had been frequently convicted and had been accorded the benefit without avail, an indeterminate sentence to the workhouse not to exceed two years imposed upon her conviction should he modified to a definite sentence of six months to take effect from the date of conviction, and, as so modified, the judgment of conviction will he affirmed.</p>

<p>Jurisdiction—Of police court—City of Rochester—To try person CHARGED WITH COMMISSION OF A FELONY—PENAL LAW, § 2.</p> <p>The grade of an offense is determined by the kind and extent of the punishment that may be inflicted.</p> <p>The public exhibition of an indecent and obscene moving picture film known as “ The Dance of the Seven Veils,” punishable under section 1141 of the Penal Law by imprisonment for not less than ten days nor more than one year, or a fine of not less than fifty dollars nor more than a thousand dollars, or both fine and imprisonment, which imprisonment may under section 2182 of the Penal Law be inflicted by confinement either in a county jail or in a penitentiary or state prison, is a crime of the grade of a felony under section 2 of the Penal Law, and a police court has no jurisdiction of .the offense..</p> <p>Under section 466 et seq. of the charter of the city of Rochester its police court has no jurisdiction to try a person charged with the commission of a felony, and the conviction of one for the public exhibition of an indecent and obscene moving picture must be reversed.</p>

<p>City of New York—Code of ordinances of—What is a “ taxicab ” or “ public hack ”—When not guilty of violation of city ordinances REGULATING PUBLIC HEALTH.</p> <p>A vehicle without a taximeter affixed is neither a “ taxicab ” nor a “public hack” within the meaning of section 80(7) of the code of ordinances of the City of New York which provides: “Any vehicle which has a taximeter affixed and uses the streets of the city for the purpose of carrying passengers for hire, shall be deemed a public hack and must be licensed under this article.” '</p> <p>A vehicle driven by mechanical power having no taximeter affixed need not comply with the requirements of said ordinance when plying or soliciting for hire public patronage or passengers upon the street.</p> <p>The driver of an unlicensed vehicle, propelled by mechanical power which has no taximeter affixed, who solicits passengers for hire within a railroad station, or who answers a call sent from a private garage, or who takes up a fare from a hotel in the city of New York, is not guilty of a violation of the city ordinances regulating the public health.</p>

Jones, a justice of the peace, sitting as a Court of Special Sessions, town of Hempstead, Nassau county, N. Y., convicting the defendant of - petit larceny and sentencing him to six months’ imprisonment in the New York County Penitentiary.

<p>Indictment fob manslaughter—Violation of Labor Law—Criminal RESPONSIBILITY OF OWNER OF TENANT FACTORY FOR DEATH OF ONE AS RESULT OF FIRE THEREIN-OMISSION TO DISCHARGE DUTY UNDER Labor Law.</p> <p>An owner of a “ tenant factory ” within the meaning of the Labor Law who may not personally participate in the violation of said statute or who may be without knowledge of its violation by his or her agent may be guilty of a misdemeanor in failing to affirmatively see that the provisions of the statute are complied with in respect to his or her property.</p> <p>An indictment charging manslaughter in the first degree and manslaughter in the second degree in separate counts against the owner of a tenant factory within the meaning of the Labor Law and his agent in charge of said building having the supervision, direction and control thereof, in which said building a fire occurred, after alleging that an individual was “ burned, suffocated and died as a result of the injuries thus received,” sets forth that the injuries and death were due to acts of omission of defendants and sufficiently alleges in what re- . spect defendants failed in the discharge of their duty under the Labor Law to decedent, and defendants are thereby apprised of, the particular acts of omission with which they are charged when read in connection with the preceding allegations in said count of the indictment for manslaughter in the first degree, a demurrer to the indictment on the ground that it does not appear upon its face that either of the crimes is charged and that the facts stated do not constitute either of the crimes charged will be overruled.</p>

<p>Evidence—When statements of inmates of disorderly house admissible—Criminal law—Tenement House Law, § 150.</p> <p>On a charge of keeping and maintaining a house of prostitution in violation of section 150 of the Tenement House Law statements of the inmates made in the absence of defendant are admissible, not as tending to establish defendant’s knowledge of the disorderly character of the house but as tending to prove it was, as a matter of fact, a house of prostitution.</p> <p>Statements of a codefendant, an employee of defendant, made in her presence and in the presence of the police officer who made the arrest, making a direct accusation against defendant, are admissible though she remained silent.</p> <p>Evidence as to whether the premises were being conducted as a disorderly house to the knowledge of defendant considered, and held to present a question of fact and that the determination of the magistrate thereon in convicting defendant was not against the weight of evidence.</p>

<p>Appeal from a judgment of the Police Court of the city of Niagara Falls convicting the defendant of vagrancy in violation of section 887, Criminal Code, subdivision 4e.</p>

<p>WiTNBSS—Hostility of, may be shown—When exclusion of testimony AS TO ILL-FEELING OF WITNESS TOWARD DEFENDANT CALLS FOB REVERSAL OF JUDGMENT OF CONVICTION.</p> <p>It is well settled that testimony to prove the existence of hostile relations between a witness and the party against whom he is called is competent and material.</p> <p>Where on a charge of disorderly conduct involving abusive language to and an assault upon a woman made against defendant, a member of the bar in good standing, the complainant is supported in her version of the alleged disorderly conduct by her sister and defendant’s explanation of what occurred was corroborated by his wife he is entitled to show by cross-examination that the testimony of complainant and of her sister was based on malice and that their conduct towards him was induced by feelings of resentment arising from the fact that he had brought certain actions at law against their brother with whom they resided, in one of which the complainant was surety on an undertaking given on appeal, and the exclusion of such testimony is error calling for the reversal of judgment of conviction rendered against defendant.</p>