Volume 37 — New York Criminal Reports

<p>-(1.) Trial—Insanity—Examination—Scope.</p> <p>Under section 658 of the Code of Criminal Procedure, the examination of the accused relates to his sanity as understood in medical science, and his mental ability to appreciate the nature of the proceedings of his trial and to make a defense, and not to his sanity in a legal sense, and his mental capacity to know the nature and quality of his act and that it was wrong.</p> <p>■(2.) Insanity at time of trial—-Temporary commitment to asylum— Trial.</p> <p>A police officer, accused of the murder of his wife, who has hallucinations of hearing and fixed delusions of persecution connected with the crime with which he is charged, is not capable of appreciating the proceedings of a trial and conducting his defense, and should be committed to an asylum until he becomes sane, and then placed on trial.</p>

<p>Contempt — What constitutes — When juror adjudged guilty op — Criminal law—Judiciary law, § 750.</p> <p>Where one upon examination as to his qualifications to sit as a juror upon the trial of an indictment for keeping a disorderly house denied any acquaintance with either of the defendants, that he had ever been in the place charged as being a disorderly house or that he had any knowledge thereof, and, upon a motion to punish him for contempt, it appears that while the jury was deliberating upon its verdict he told other jurors that he was acquainted with one of the defendants, the place of business in question and that he had been in it several times before the trial, he will be adjudged guilty, his conduct constituting a contempt of court under section 750 of the Judiciary Law.</p>

<p>Highway law, § 287—Bate of speed of motor vehicles*—Burden of proof—Appeal.</p> <p>Section 287 of the Highway Law declares that “ a rate of speed in excess of thirty miles an hour for a distance of one-fourth of a mile shall be presumptive evidence of driving at a rate of speed which is not careful and prudent,” and a defendant charged with driving his motor vehicle at a rate of forty-two miles an hour has the burden of showing that in the circumstances he was not driving in a reckless or imprudent manner.</p> <p>Evidence considered and held to establish beyond a reasonable doubt that defendant at the time and place of his arrest was not driving his car in such a reckless or imprudent manner as to endanger the property of another or the life or limb of any person, and a judgment convicting him of a violation of said section 287 will be reversed and the fine imposed remitted.</p>

Examination upon an information laid by a complaining witness, representing the Brooklyn Bar Association, charging the- defendant with the rendition of legal services in drawing a contract for the sale of real estate in violation of section 280 of the Penal Law.

<p>Disorderly conduct—Act op alien enemy in answering question required by Federal Selective Service Law.</p> <p>The act of a registrant appearing before a Local Exemption Board, in answering questions propounded to Mm from the printed questionnaire to the effect that he claims exemption from military service on the ground that he is an alien enemy and that he is willing to return to Austria and enter the Austrian Army, where the questions are answered in a proper and gentlemanly manner and in an ordinary tone of voice, is an act done under the lawful compulsion of the federal statute, and is not disorderly conduct within sections 1458 and 1459 of the New York Consolidation Act.</p>

<p>Receiving stolen goods known to be stolen applies only to identical PROPERTY STOLEN.</p> <p>Where one by larcenous fraud induces another to create and remit through banking channels a credit in his behalf in a bank upon which he draws a check and thereby obtains currency, another person receiving and withholding any part of such currency with knowledge of the criminal fraud of which it is the intended fruits, does not commit the crime of criminally receiving stolen property in violation of Penal Law, section 1308, since the currency is not the original thing stolen.</p>

<p>(1.) Penal Law, § 421—Deceptive or misleading advertisement.</p> <p>To make an advertisement criminal under Penal Law, § 421, it must contain some assertion, representation or statement of fact that is untrue, deceptive and misleading regarding what the accused offers in the shape of merchandise or service.</p> <p>(2.) Same.</p> <p>Defendant advertised that a recent patent. suit against complainant established that none but defendant used a process by which the hair was really steamed, and that an “injunction was granted against complainant on the ground that he put chemicals into the hair before boiling it.” Held, that this was a false statement, intentionally made to influence the public, and a violation of the statute.</p> <p>Fees chi, J., dissenting.</p>

<p>(1.) Suspension of sentence—Laws 1918, Oh. 457.</p> <p>The power of a magistrate to suspend the execution of a sentence in whole or in part may only be exercised at the time of the imposition of a sentence. He has no power to suspend a setnence in whole or part subsequent to that time.</p>

<p>Disorderly persons—Who are—When wife may cause arrest of husband UPON CHARGE OF BEING A DISORDERLY PERSON-APPEAL—WHAT NOT A BAR TO CONVICTION-WHEN JUDGMENT OF CONVICTION AFFIRMED-HUSBAND and wife—Code of Criminal Procedure, § 899(9).</p> <p>Where a wife without means to support herself is abandoned by her husband and is liable to become a charge upon the public, and she neither wishes to sue for a separation nor a divorce, she may cause his arrest upon a charge of being a disorderly person under section 899(1) of the Code of Criminal Procedure.</p> <p>Where upon appeal from a judgment convicting defendant of being a disorderly person within the meaning of section 899(1) of the Code of Criminal Procedure, the record shows that defendant’s offers to his wife of a home in a hotel in the city where they had resided ever since their marriage were made in bad faith and with fraudulent intent to evade the provisions of said statute, and it appears that the place offered consisted of two rooms which were not in keeping with the station and standing in life of the husband and wife; were oh the fourth floor in the back of the hotel, where she would be cut off from the comforts and conveniences such as she had been accustomed to, and the hotel proprietor testifies that the rooms were not desirable, the judgment of conviction will be affirmed.</p> <p>The wife was not compelled to accept defendant’s offers of a home made upon the hearing of the proceeding, and in the circumstances they were not a bar to his conviction.</p> <p>The law never guards “bad faith” to such an extent as to permit a husband to compel his wife to go where he would “get her” in order to aeomplish some ulterior purpose of his own.</p>

<p>Indictments—Demurrer to indictment^Charging crime oh practicing MEDICINE WITHOUT BEING REGISTERED—PUBLIC HEALTH IiAW, § 173.</p> <p>An indictment charging defendant with the crime of practicing medicine without being registered need not negative the exceptions contained in section 173 of the Public Health Law.</p>

<p>Eace discrimination—Exclusion of negro from use of swimming pool IN A PARK IS NOT A VIOLATION OF SECTION 514, PENAL LAW.</p> <p>Under the phrases “or other places of amusement” and “or other places of public resort or amusement” a swimming pool is not ejusdem generis of the specifically enumerated places preceding these phrases in section 514 of the Penal Law, and therefore such a place is not within the present provisions of that section.</p>

<p>(1.) New tbial*—Motion fob, denied—Recanting witnesses—Bubden of pboof—Code Obim. Peo., 5 465(7).</p> <p>While the fact that witnesses for the People have recanted the testimony given by them on the trial of an indictment for murder in the first degree, does not in and of itself require the granting of a new trial, it is the duty of the court and trial judge, upon the hearing of a motion therefor, to examine said witnesses and, if possible, determine whether the recanting testimony is true, and unless convinced that it is or that there is a reasonable possibility of its being true, the motion for a new trial made under section 465(7) of the Code of Criminal Procedure will be denied.</p> <p>(2.) Same—Bubden of pboof.</p> <p>While on such a motion the burden is on the defendant to show by a preponderance of evidence why the judgment of conviction should be set aside he should not be required to prove his case beyond a reasonable doubt.</p> <p>(3.) Same.</p> <p>In view of the ease with which witnesses of bad character who run no risk of prosecution of perjury committed on the hearing of the motion and little or no risk upon the theory that they swore falsely upon the .trial, may be induced to recant, such evidence should be most carefully scrutinized, and unless by a preponderance of evidence it is made to appear that the recanting testimony is true, the judgment of conviction must stand.</p> <p>(4.) Same.</p> <p>The record of the trial, the affidavits submitted, the testimony given on the hearing of the motion by two recanting witnesses, and the testimony of another of the People’s witnesses, who, while not recanting his testimony given on the trial, swore to certain facts tending to corroborate one of the recanting witnesses, considered, and held, that the testimony of the recanting witnesses given on the trial not having been proven false by a preponderance of testimony, the motion for a new trial will be denied.</p>

<p>Appeal—Criminal law—Judgment of conviction and prison sentence IN A MAGISTRATE'S COURT AFFIRMED—AUTOMOBILES*—VIOLATION OF SPEED LIMIT.</p> <p>Where a physician, a man of superior intelligence, who after having been convicted five times of operating his automobile at an illegal rate of speed and fined in varying and increasing amounts, on his plea of guilty of having again violated the speed limit, offered one excuse for his act and on appeal from a judgment of conviction imposing a ten days’ sentence in the county jail submits a different excuse, the judgment of conviction in the circumstances will be affirmed.</p>

<p>Indictments*—Evidence before grand jury—Conspiracy—Accomplice— Corroboration—Witness—Criminal law—Greater Hew York Charter, Laws 1901, chap. 466, as amended—Penal Law, § 1826.</p> <p>The defendant A, chief of the bureau of fire prevention of the fire department of the city of Hew York, vested with authority to perform the duties and powers devolved upon the fire commissioner by the city charter (Laws of 1901, chap. 466, as amended), and by certain of the city ordinances, and the defendant B, a captain in another department of the bureau of fire prevention, which was under the supervision of A, were charged by indictment with conspiracy to suppress and prevent the prosecution and punishment of certain divers persons for the violation of certain statutes and city ordinances, and it was also charged that A and B, together with the defendants C and D, civilians, formed an organization known as the “ Columbus Film Exchange ” for the purpose of "collecting money illegally from persons engaged in the moving picture business. An indictment under section 1826 of the Penal Law charging that A feloniously asked and received from and agreed and consented with divers persons to receive certain money, gratuity and reward, which he was not entitled to receive, for the purpose of omitting to perform and for having omitted to perform official acts which related to the duties and powers of his office, in that he omitted to detect and cause to be detected violations of statutes and ordinances, and for omitting to prosecute and cause to be prosecuted violators of said statutes, although it was his duty so to do, further charged that B, C and D feloniously aided and abetted A in the commission of the crime. Another indictment charged that B had violated said section 1826 and that he was aided and abetted by the other three defendants in the commission of the crime. D, the only defendant who. did not move for an inspection of the minutes of the grand jury, upon which all of the indictments were found, waived immunity and testified against his co-defendants. There was no evidence as to whether A received any money from D or any other person and the record is silent as to what disposition C made of money paid to him by D. Separate motions by the defendants other than D to dismiss the indictments, made after inspection of the minutes of the grand jury, considered, and the motion of A to set aside the three indictments granted, with leave for a resubmission of the charges to the sa'me or another grand jury, provided the district attorney can obtain legal evidence to connect A with the crimes charged.</p> <p>No legal evidence having been presented showing that B and 0 aided and abetted A, their motion to dismiss the indictment charging A with a violation of section 1826 of the Penal Law is granted with leave for a resubmission, of the charges as against them to the same or another grand jury, etc.</p> <p>The motions of B and C to dismiss indictments charging them with the crime of conspiracy and the indictment charging B with a violation of section 1826 of the Penal Law, denied.</p> <p>Where the district attorney called as a witness to corroborate the testimony of D his wife, and it clearly appears that she had guilty knowledge of0the criminal purpose of the film exchange, knew that her husband collected money from the exhibitors, which was to be paid to public oifieials for violating their duty, was present on several occasions when the ill-gotten gains collected by her husband were turned over to C, agreed to act as the depositary of her husband’s share thereof, that a sum of money received from him was the result of his share of the tribute paid by the exhibitors, and was paid to her during the conspiracy, she must be held to have been an accomplice, as matter of law.</p> <p>Evidence of witnesses other than D and his wife by which it was sought to corroborate their testimony considered, and held, that it did not tend to show that A was connected with the crimes charged in the indictments against him but that there was sufficient corroborative proof of a circumstantial and direct character to support the testimony of the accomplices, and to connect the defendants B and C with the transactions set forth in the indictment.</p>

<p>(1.) Disorderly Conduct*—When not a crime—Jurisdiction op Magistrate’s Court—Criminal law—Code Crim. Pro., § 137.</p> <p>Section 137 of the Code of Criminal Procedure does not apply to a ease of disorderly conduct tending to a breach of the peace in violation of sections 1458 and 1459 of the New York City Consolidation Act of 1882.</p> <p>Upon proof that defendant, while a passenger on a railway train enrowte for New York city, uttered certain seditious remarks, the Magistrate’s Court in said city, before whom defendant was charged with disorderly conduct tending to a breach of the peace, has not jurisdiction to summarily adjudge the defendant guilty and impose sentence. Disorderly conduct tending to a breach of the peace is not a crime.</p> <p>(2.) Same—Penal Code, $ 270.</p> <p>It was the duty of the magistrate to have entertained a complaint for disorderly conduct under section 720 of the Penal Law which makes, it a misdemeanor for “any person who shall, by any offensive or disorderly act or language, annoy or interfere with any person in any place or with the passengers of any public stage, railroad car, etc.,” for the purpose of holding him for trial in the Court of Special Sessions.</p>

<p>Application for certificate that charge be prosecuted, by indictment.</p>

Appeal by plaintiff from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, fourth district, -in favor of defendant after a trial by a court without a jury.