Volume 36 — New York Criminal Reports

<p>Appeal from a judgment of the Police Court of the city of Niagara Falls convicting the defendant of a violation of section 12 of article 4 of chapter 18 of the ordinances of said city, which reads as follows: “A vehicle overtaking a street car stopped to take up or set down passengers shall come to a full stqp at a distance at least ten feet from the point where passengers are being taken up or let down.”</p>

<p>Disorderly conduct—What constitutes—Evidence—Criminal law.</p> <p>Evidence that defendant, a few days after the declaration of war between the United States and Germany, distributed along the line of march of a patriotic parade, in large numbers, a printed pamphlet which stated in effect that the war was decreed by the “ Czars, Kings and Lords of the Money Trust” and that it was declared for the maintenance and extension of exploitation, etc., justifies a finding that ■such, distribution was an act tending to create a breach of the peace and that defendant was properly convicted of disorderly conduct, though the evidence Showed that no disorder actually occurred.</p>

<p>Appeal from a judgment of a Magistrate’s Court.</p>

Charles M. Strauss was indicted for attempted grand larceny in the second degree. On motion to dismiss the indictment upon the minutes of testimony taken before the grand jury, after an order granted for an inspection thereof. Denied.

<p>Sunday — Penal law, § 2145 — Playing baseball.</p> <p>A public ball game conducted on Sunday is unlawful, and the fact that the net proceeds of the entertainment were given- to a charitable organization for patriotic purposes, it is still an infraction of the law.</p> <p>Same.</p> <p>The fact that the game was preceded by a concert to which an- admission fee was charged and after the concert and before the game of ball commenced, the doors were opened for free admission is of no importance except -as an indication of the- general and public quality of the entertainment.</p>

<p>Automobiles *— Reckless driving on public streets — Misdemeanor — Penal Law, § 1938—General Highway Traffic Law of 1917.</p> <p>Where the act of defendant in driving .an automobile on the public streets of a city at a greater speed than one mile in four minutes was not only in violation of a local ordinance but also violated the provisions of the General Highway Traffic Law (Laws of 1917, chap. 655), wihich prohibits reckless driving and makes the same a misdemeanor, defendant may be proceded against under either provision of law, but under section 1938 of the Penal Law it is improper to render two different judgments of conviction against him.</p>

<p>1. Donnelly Ante-Trust Law—General Business Law, §§ 340, 341— What contracts affected.</p> <p>The Donnelly Anti-Trust Law (General Business Law, §§ 340, 341) was intended to prevent restraint of trade and the creation of monopoly in articles of trade, and the essential element of trade is that such articles are to be bought and sold.</p> <p>Not all contracts aflfeeting the prices of articles! or commodities are denounced by said statute, hut only such as aifect the price of articles or commodities in common use.</p> <p>2. Same—Photo-engraviNg not a “commodity.”</p> <p>Under no definition can a photo-engraving he called a commodity and, even conceding that it is, it cannot he said to be in common use, a distinction emphasized by the statute.</p> <p>3 Same—Motion to dismiss indictment granted.</p> <p>Where an indictment charging defendants: with a violation of the Donnelly Anti-Trust Law alleges that there were more than forty persons, firms and corporations separately engaged in competition with one another in the business of manufacturing “and selling what are commonly known as photo-engravings which are used for the purpose of printing illustrations and pictures, and which are articles and commodities in common use,” and that these persons and corporations constituted a majority of all engaged in that business in New York county, where the indictment was found, and did collectively more than ninety per cent, of said business in said county, and the minutes of the grand jury disclose that there is not an item of evidence to sustain the allegations of the indictment that photo-engraving is an “ article or commodity in common use,” a motion to dismiss the indictment will be granted.</p>

Joseph Beihther was indicted as an accessory to the crime of rape of the second degree, and moves to dismiss indictment. Motion denied.

<p>Sunday performances—Penal Law, § 215®—Ownership of theatre.</p> <p>The naked! fact of ownership of a theatre or other place of amusement is insufficient to base thereon a violation of Penal Law, § 2152, relating to Sunday performances'. Only such an owner is liable as leases or assents to the use of the theatre for the prohibited purposes.</p> <p>Same—Owner’s name on ticket.</p> <p>The appearance of the owner’s name on the admission ticket as part of the title of the theatre does not of itself justify the presumption that he has assented to a prohibited performance.</p> <p>Same—“ Negro ” dancing.</p> <p>In the phrase “negro or other dancing” used in section 2152 of the Penal Law the words “ or other dancing ” are to be construed ejusdem generis to signify the type of dancing of the American negro classed in I860 as “negro” dancing.</p> <p>Same—“ Serious interruption.”</p> <p>Quwre: Whether under section 2140. of the Penal Law, prohibiting acts which are “ serious interruptions of the repose and religious liberty of the community,” performance of the prohibited acts is per se a violation, of law, or in order to constitute a violation there must be established a “ serious interruption ” as matter of fact.</p>

<p>Perjury—Authority of United States commissioner.</p> <p>A United1 States commissioner has authority to conduct judicial hearings for the purpose of inquiring whether a crime has been committed, and, if so, whether there is reasonable ground for connecting the prisoner with it. This authority is involved in the manifest injustice of imprisoning citizens without giving them a hearing, and is inferentially, if not expressly, conferred by section 1678, U. S. Comp. Stat.</p> <p>Same—U. S. Rev. Stat. § 1014.</p> <p>Under section 1014, U. S. Rev. Stat., which empowers a United States Commissioner to imprison or bail an offender “ agreeably to the usual mode of process against offenders in such state,” a United States commissioner performing his duties in the State of' New York is "authorized to conduct such examinations as are provided for in the Code of Criminal Procedure of the State of New York.</p> <p>Same—Letters as evidence.</p> <p>Letters may be admissible for the purpose of showing similarity of characteristics, habits, expressions and chirography of the writer with those of a person whose identity is in issue, although the contents of the letters may be inadmissible for the purpose of proving the facts stated therein.</p> <p>Trial—Charge.</p> <p>The trial justice in entitled in his charge to contrast the Government’s theory and the defendant’s theory of the facts. Where the jury is fully and clearly informed as to the presumption of the defendant’s innocence, the necessity of proving his guilt beyond a reasonable doubt, and that the jurors are the absolute judges of the facts, the rights of the defendant are not infringed if the charge by contrasting the respective theories is in the nature of things persuasive of the greater probability of the Government’s case.</p> <p>Same—Refusal to recall witness.</p> <p>Where the defendant’s counsel, in ignorance of the fact that a paper marked for identification was thereafter marked in evidence, failed to examine a witness in reference thereto, and upon discovery requested the court, at the conclusion of the summing up for the Government, to- permit the witness to be recalled for examination in respect of said exhibit, the refusal of the trial justice to grant the application at that stage of the case does not constitute error unless such refusal amounts to an abuse of discretion.</p> <p>Same—Witness—Objection to as previously convicted op crime.</p> <p>An objection to the competency of a witness because of a previous conviction of crime, held no good.</p> <p>Same—Refusal to charge.</p> <p>The refusal of a trial judge to charge as requested is not an error if the matter covered by the requst has been fairly covered in the main charge. •</p> <p>Same—Judge may prevent unnecessary and prolix examination.</p> <p>A trial judge is entitled to prevent unnecessary and prolix examination, and to exclude questions which, though proper, have been previously answered.</p>

<p>Indictment—When demurrer thereto sustained—Liquor Tab Law— Code Grim. Pro. §§ 275, 276.</p> <p>An indictment charging a violation of the Liquor Tax Law which fails to set forth any date on which the offense is alleged to have been committed1 is not sufficiently specific to apprise defendant of the charge against him, and the demurrer on the ground that the indictment does not conform to sections 275 and 276 of the Code of Criminal Procedure will be sustained.</p>