Volume 35 — New York Criminal Reports

<p>Constitutional law—Stock transfer law, section 271a.</p> <p>Section 271a of the Stock Transfer Law, forbidding the sale of stock ' transfer stamps without the consent of the State Comptroller, is within the proper exercise of the police power of the State and is constitutional.</p>

<p>Motion directing the service of hill of particulars.</p>

<p>Appeal from a judgment of conviction by a Court of Special Sessions.</p>

<p>Sanitary Code—Section 68, subs. 6e-—Adulterating soda water— Saccharin—Strawberry soda—Constitutional Law.</p> <p>Section 68 of the Sanitary Code and the resolution of the Board of Health of New York of August 22, 1911, that foods or food products containing saccharin be deemed adulterated under said code, were enacted in good faith to safeguard the public health, and in pursuance of a reasonable exercise of the police power and are constitutional.</p> <p>Collins, J., dissenting.</p>

<p>Sentence *—When illegal—Evidence—When inadmissible—Penal Law, § 2444—Code Civ. Peo., § 832—Code Cbim. Peo., § 392.</p> <p>After the conviction of a defendant of any of the offenses enumerated in section 4 of chapter 579 of the Laws of 1915, as amended in 1916, and prior to the imposition of sentence, it is incumbent upon the magistrate to give due notice and opportunity to the defendant to be heard in opposition to accusations of prior convictions of any or each of said offenses during the twenty-four months just previous or three or more times previous to the present conviction, and any sentence in excess of six months imposed upon such a defendant without notice, etc., is illegal and void.</p> <p>Compliance with the two conditions prescribed by said section is indispensable before a defendant convicted of any of the offenses enumerated therein can be legally sentenced to the workhouse for an indeterminate period of two years.</p> <p>Where after defendant was properly convicted of disorderly conduct tending to a breach of the peace, one of the offenses enumerated in section 4 of chapter 579 of the Laws of 1915, as amended, and before the imposition of sentence, the magistrate without complying with the requirements of said section as to notice, etc., sentenced defendant to the workhouse for an indeterminate period of two years, such sentence is illegal, and the judgment of conviction will be modified and defendant sentenced to a term of six months in the workhouse to take effect from the date of his conviction.</p> <p>Even if the magistrate had given defendant due notice and opportunity to be heard in opposition to the accusations of prior conviction, and even-' if the two convictions of defendant for acts of juvenile delinquency, offenses not enumerated in said section 4 of chapter 579 of the Laws of 1915, as amended, had occurred within twenty-four hours just previous to the present conviction, the testimony of the probation officer by which such prior convictions were sought to be established was hearsay and inadmissible, section 2444 of the Penal Law requiring record proof. ,</p> <p>The statutes (Code Civ. Pro., § 832; Code Crim. Pro., § 392, and Penal Law, § 2444) which provide that for the purpose of affecting the credibility of a witness the fact that he had been convicted of a crime may be proved by the record, or his admission on cross-examination, impliedly prohibit the reception of any other or different proof.</p>

<p>Indictment—When existence of, must be established—Evidence— When motion to dismiss indictment granted—Grand jury.</p> <p>The existence of an indictment, which is a public record, must he established by competent proof and not by inferior and secondary evidence.</p> <p>Parol evidence of the contents of an indictment cannot be received, hut the clerk of the court who is the custodian of its records should be called to produce the indictment itself.</p> <p>Defendant by indictment was charged with conspiring to prevent the due course of law and justice, and illegally and fraudulently to compound the crime of grand larceny in the second degree, for which one M. was under indictment, and to delay prosecution therefor," and to withhold evidence thereof, and illegally and fraudulently to cause books to be concealed and withheld from the district attorney, the entries therein being material evidence upon the trial of M. On motion to dismiss the indictment upon the ground, first, that it clearly appeared from the minutes of the grand jury that there was not sufficient legal evidence to support the indictment, and, second, that illegal and incompetent testimony prejudicial to the constitutional rights of defendant was received, it appearing that the only evidence presented to the grand jury that an indictment was pending against M. was the testimony of an assistant district attorney who gave parol evidence on the question; held, that such testimony was clearly hearsay and that the clerk of the court should have been called to produce the indictment.</p> <p>The indictment against defendant alleged the organization and existence of a domestic corporation and that one M. was a stockholder in and treasurer thereof; that the business of said corporation was managed and controlled by him and one J.; that certain entries in the books of said corporation had been introduced in evidence before the grand jury which returned the indictment against M. and that said entries in said books afforded competent and material evidence of the guilt of M. and were essential to the successful prosecution of the indictment against him. There was not an item of testimony to show to the grand jury that said book entries were legal and competent evidence against M.; they could not be introduced in evidence against M. on his trial unless it was shown that he had made the entries in the books, or that he had knowledge of the contents of the books or some connection with the entries therein, but no such evidence was given before the grand jury. Held, that the proceedings against defendant having been begun with illegal and prejudicial testimony given by an assistant district attorney and throughout the case incompetent and highly prejudicial evidence was constantly received and submitted to the grand jury with a denunciation of defendants as a “ bunch of crooks,” the motion to dismiss the indictment will be granted, with leave to the district attorney to resubmit the matter to the same grand jury.</p> <p>District attorneys in presenting cases to the grand jury should keep in mind that they owe a duty to persons charged with crime and that only legal evidence should be presented for the consideration of that body.</p>

<p>Bees—How bight of possession proven.</p> <p>Plaintiff hived certain bees on H avenue. One of the hivés swarmed and left Brown’s place. Eckes, who was working on Deane’s place, brought them down .by pounding on tin. Deane not wishing to have the bees, Eckes delivered them to Stevens. Held, that as an employee of Brown kept the bees in sight until they alighted, plaintiff is-entitled to recover them.</p>

<p>Automobiles*—Operating, without a chauffeur’s license—Criminal Law.</p> <p>An employee of an electric company who not having a chauffeur’s license uses in the discharge of his duties an automobile furnished by his employer is properly convicted of operating an automobile without a chauffeur’s license.</p>

<p>Arbest—Fob violation of one of the provisions of the Sanitary Code—Disorderly conduct—Evidence—Appeal—When judgment of conviction reversed.</p> <p>A health officer lawfully having in his custody and under arrest a brother of defendant upon a charge of violating one of the provisions of the Sanitary Code, defendant in order to release his brother took hold of the officer’s hand and attempted to strike him. On appeal from a judgment convicting him of disorderly conduct tending to a breach of the peace, the record was barren of any legal evidence tending to show that defendant refused to allow the health officer to freely and fully inspect any food product under his control, and the proof showed that the food products examined by the health officer belonged to a corporation in the business of which neither defendant nor his brother had any interest. Held, that in the absence of proof to the effect that defendant’s brother was guilty of a violation of any of the provisions of the Sanitary Code, or that he had illegally resisted the enforcements of any of the orders of the Department of Health, no duty was imposed on the health officer and he had no right to arrest him, and, therefore, defendant’s act in taking hold of the officer in order to prevent the illegal arrest of his brother did not amount to disorderly conduct tending to a breach of the peace, and the judgment of conviction will be reversed and a new trial ordered.</p>

<p>Endangering morals oe children—Penal Law, section 485— Boxing.</p> <p>Defendants, as members of a sporting club, gave a boxing match by two boys, aged fourteen and fifteen years, paying them one dollar each. Eeld, that the question as to whether the performance was injurious or dangerous to their morals, should have been submitted to the jury.-</p>

<p>Indictment—Trial—Evidence—Perjury—Code Crim. Pro., § 465(7).</p> <p>Defendant and another were jointly indicted for assault. .The co-defendant on a separate trial committed perjury by denying as- a witness in ids own behalf that he committed the crime, but he was convicted. On the trial of defendant his co-defendant as a witness for the prosecution testified that defendant committed the crime and gave false testimony exculpating himself. Held, that a motion by defendant for a new trial under section 465(7) of the Code of Criminal Procedure based on affidavits; one by his co-defendant stating that he committed perjury in implicating defendant; one by another stating that the co-defendant told the affiant that defendant had not committed the crime, and one by another whose testimony would be merely cumulative and not such as in the opinion of the court would have changed the verdict, will be denied.</p>

<p>Jurisdiction—Sanitary Code, section 331—New York City—Sale oe “ SPOT EGGS.”</p> <p>The Court of Special Sessions, while it has the power to hear and determine the crime of violating the Sanitary Code of New York, irrespective of the facts charged, acquires jurisdiction of defendant’s person in this particular ease “by the filing of an information and his plea thereunder.” And there having been no information filed, although defendant plead, judgment should be arrested and the district attorney permitted to frame and file a proper information.</p> <p>Edwards, J., dissents.</p>

Motioit to set aside a verdict and grant a new trial upon the grounds, first, that upon another trial the defendant can produce evidence such as if before received probably would change the verdict; and, second, the verdict is contrary to law.

<p><1.) Jurisdiction—Court of Special Sessions without jurisdiction because of failure to file information ALTHOUGH defendant PLEADED NOT GUILTY AND PROCEEDED TO TRIAL-SELLING SPOTTED eggs—Sanitary Code, § 331.</p> <p>The City Magistrate, upon a deposition taken before him charging defendant with offering for sale “ spot eggs ” held defendant for trial in Special Sessions, remitting his papers to the district attorney, who failed to file any information as required by the statute. Defendant pleaded “ not guilty ” and the clerk read from the magistrate’s deposition. Defendant was tried and found guilty and his motion to arrest judgment denied. Held error.</p> <p>(2.) Same—Waiver.</p> <p>The court acquires jurisdiction by hath the filing of information and defendant’s plea — and the trial without objection to the non-filing of the information is not a waiver.</p>

<p>(1.) Labor Law—Unlawfully fastening factory doors—Definition of “ factory ”—Laws 1909, ch. 36, § 2.</p> <p>Upon the trial of an issue of fact under the charges of unlawfully fastening factory doors, the prosecution must prove beyond a reasonable doubt that the premises in question constitute such a factory as is defined in the Labor Law.</p> <p>(2.) Same—Demurrer.</p> <p>The facts charged in the deposition made it appear that defendant, a railroad corporation, was the proprietor of a factory where cars were repaired and inspected. Held, that the information was demurrrable, as to allege that defendant had a. factory within the law might well include such factory as is exempted from the operation of this law, and that the specific exceptions set out in the Labor Law should be negatived in the information.</p>

<p>(].) Penal Law, § 1425, sued. 3.</p> <p>Defendant removed a frame bungalow, in the course of construction, from property to which they claimed title and upon which they had lived for nine years, and which they regarded as a trespass by the builder of the bungalow. Held, that unless it was proven beyond a reasonable doubt that the acts complained of were committed maliciously a conviction could not be had.</p> <p>(2.) Same.</p> <p>The word “ willfully ” used in section 1425, subd. 3, Penal Law, does not mean voluntary or intentional act which is wrongful, it includes the idea of an- act intentionally done with a wrongful purpose, or with a design to injure another or one committed out of mere wanton or lawlessness.</p>

<p>Health Law—Penal Law, § 435—" Kosher ” meat.</p> <p>Defendant had inscribed on his window “ Kosher Meat and Poultry Market.” The meat exposed for sale was not “ Kosher ” but “ tref ” and was not slaughtered and cared for as prescribed by the Orthodox Hebrew Church. He sold such meat in a wrapper describing it as “ Kosher.” Held, that the sign on the window did not constitute a declaration that all the meat sold or offered for sale was “ Kosher ” nor that such meat was there for sale at all times and that defendant had not “ with intent to defraud sold or exposed for sale any meat and falsely represented the same to be ‘ Kosher.’ ”</p> <p>Fees chi, J., dissenting.</p>

<p>Common prostitute *—Loitering—Consolidation Act, § 1458.</p> <p>If a woman is clearly shown by her conduct on the occasion complained of to be loitering in a thoroughfare for the purpose of prostitution or solicitation to the annoyance of the inhabitants or passersby, it is not necessary to produce other evidence to show that she is a common prostitute. The keynote of the Consolidation Act, § 1458, is the annoyance of the inhabitants or passersby “ by women loitering for the purpose of prostitution.”</p>

<p>Indictments—Fob perjury—Pleading—Gband jury—Evidence—General Business Law, § 340.</p> <p>An indictment for perjury charged to have heen committed before the grand jury must set forth the specific violation of law the grand jury were investigating.</p> <p>Where facts alleged in an indictment charging defendant with perjury committed before the grand jury, upon an investigation of an alleged violation of section 340 of the General Business Law, negative» the materiality of his said testimony and shows that it must have been immaterial, the indictment is bad on demurrer, notwithstanding the indictment contains an allegation that the testimony was material.</p>

<p>Indictments—Of member of Public Service Commission—For bribery —Requirements of public policy—Trial—Evidence—When PRIMA FACIE case AGAINST DEFENDANT MADE OUT.</p> <p>Where a member of the Public Service Commission for the first district is indicted for bribery, public policy requires that the case be tried, unless it is apparent that under no possible' circumstances can the prosecution succeed, especially where it is evident that the trial cannot be a prolonged one, unduly burdening the parties thereto or unduly obstructing other public business.</p> <p>While the testimony of the principal witness for the prosecution is indefinite in certain respects yet if believed by the jury, and on his own testimony said witness is not an accomplice, a prima faoie case against the defendant is made out, but should testimony be given by the defense tending to prove that said witness is an accomplice, an issue of fact on that question would be presented which should be submitted to the jury for consideration, and it also appears that the trial must be brief, the recommendation of the district attorney that defendant’s bail be discharged will not be approved.</p>

<p>Citt of New York—Code of Ordinances of—§§ 80(4), 99, 106—What IS MEANING OF “ PUBLIC HACK ” * APPEAL—EVIDENCE CRIMINAL LAW.</p> <p>A sight-seeing car when engaged in soliciting public patronage is a public hack ” within the meaning of section 80' of the Code of Ordinances of the city of New York, and the provisions of section 106 thereof prohibiting a public hack while awaiting -employment to stand on any public street or place other than at or upon a public hack stand apply to such a vehicle.</p> <p>A public hack stand designated by the commissioner of licenses as authorized by section 99 of the said Code is a “ fixed locality ” within the meaning of section 80i(4) thereof.</p> <p>Where on appeal from a judgment of conviction for a violation of said section 106, generally known as the public hack ordinance, adopted March 23, 19-15, and approved March 30, 1915, the evidence shows that defendant maintained a sight-seeing car in front of his office or depot for the purpose of awaiting its employment by passengers, and it also appears that said office or depot had not been designated and established as a public hack stand, by the commissioner of licenses, pursuant to said section 99, the judgment of conviction will be affirmed.</p>

Demubbebs filed by defendants, Baff, Werner, Sokoloff, Frank and Abelson, December 19, 1916, to an indictment charging them with a violation of section 340 of the General Business Law (the so-called Donnelly Act).

<p>Indictments—Return op—Grand jury—Evidence—Forgery—When motion TO DISMISS INDICTMENG GRANTED-CRIMINAL LAW.</p> <p>Where on motion to dismiss an indictment for forgery in the second degeree charging defendant with having forged a certain instrument in writing, known as a traveler’s check, and with uttering the same with intent to defraud, well knowing that it- was forged, it appears that there was no legal proof before the grand jury which returned the indictment that defendant either forged the check or uttered it with guilty knowledge, the motion will be granted, and where the proof may be supplied an order may be entered directing the submission of the case to the same or another grand jury.</p>

<p>Indictment—When motion to set aside will be granted—Pleading— Grand jury—Evidence—Criminal law—General Business Law, §§ 340, 341.</p> <p>On granting a motion to set aside an indictment with leave to resubmit the charge to the grand jury, the same procedure should be followed as where ,a demurrer is sustained with like leave.</p> <p>Where, upon sustaining a demurrer to an indictment under the “ Donnelly-Anti-Trust Law ” (General Business Law, §§ 340, 341), upon the ground .that the acts -charged in the indictment to have been committed by defendants- did not construe a crime, an order was entered granting leave for the resubmission of the charge to the same grand jury and a new indictment is returned without the- taking of any additional testimony, a motion to set aside the new indictment for failure of the grand jury to examine the witnesses- anew before finding the new indictment will be denied.</p> <p>Where, however, in the record of the proceedings before the grand jury which- returned the new indictment, which charged in substance that defendants organized a corporation as a medium to monopolize the Sale'of live and slaughtered poultry and to fix the prices thereof in certain designated sections of the city of New York, there is an absence of legal evidence to support the allegations that four of the defendants, together with other persons mentioned in the indictment, controlled -seventy-five per cent or upwards of the poultry business in the designated locality or that they had sufficient control therein of such business so as to bring their conduct within the condemnation of the statutes relating to illegal combinations, and the record does not disclose what part of said business was controlled by the defendants- and the other persons mentioned in the indictment, and although incompetent testimony was received, there was no competent evidence before the grand jury to connect defendants with the commission of the crime charged, a motion to set aside the indictment on the grounds that the evidence before the grand jury fails to show that defendants committed the crime charged in the indictment, and that incompetent testimony was received in support thereof, will be granted.</p>

<p>Perjury*—False testimony must be material^Criminal law—Evidence—When motion to dismiss indictment granted.</p> <p>False testimony to constitute perjury under the statutory definition of that crime must be given concerning^material matter; if the testimony is willfully false and is material for any purpose under the issue and is received, even though it might have been excluded under some rale of admissibility, it is perjury.</p> <p>Where defendant was charged by indictment with perjury in that he willfully and knowingly testified falsely in a civil action that he had not signed a certain paper, .when in truth it had been signed by Mm and delivered to the defendant in said action, and upon the reversal of a judgment in favor of defendant it was held that the testimony concerning the existence of said paper was immaterial to any of the issues raised by the pleadings and presented upon the trial, and upon a new trial which had been directed evidence concerning said paper was excluded and judgment entered for plaintiffs, judicial comity and a sound public policy require that upon a motion to dismiss the indictment the court should be governed by such decision, and the motion granted.</p>