Volume 38 — New York Criminal Reports

<p>(1) Liquor Tax Law—Constitutionality op section 30 (P).</p> <p>A statute should be construed so as to effectuate the legislative intent if possible.</p> <p>The Legislature intended that the provisions of subdivision P of section 30 of the Liquor Tax Law should only operate prospectively.</p> <p>The first sentence of subdivision P of section 30 of the Liquor Tax Law, that “It shall not be lawful,” etc., should be read as though it declared “It shall not hereafter be lawful for an;- person, etc., to sell, expose for sale, give away liquors, etc., if they shall have knowledge or reason to believe that such liquors are sold, etc., to a person in a city or town where the business of trafficking in liquors is prohibited.”</p> <p>(2) Same.</p> <p>It is unlawful under subdivision P of section 30 of the Liquor Tax Law to possess liquors in dry territory unless the same is prescribed by a physician, and though an indictment charging a violation of the statute alleges that the liquors possessed by defendant were not so prescribed, the prosecution need oifer no evidence on the point, but the onus■ proiandi is upon the defendant to show, as a fact peculiarly within his own knowledge, that he had a physician’s prescription to have the liquors in his possession.</p> <p>(3) Same—"In any quantity” mere surplusage.</p> <p>The words "in any quantity” after the word "liquors” in said subdivision of section 30 of the Liquor Tax Law are mere surplusage, and it must be held that the legislative intent was to prohibit the possession of liquor.</p> <p>(4) Same—Liquor Tax Law does not violate State or Federal Constitution.</p> <p>The provision of subdivision P of section 30 of the Liquor Tax Law that it shall not be lawful for a person to have liquors in any quantity in his possession in any city or town where trafficking in liquors is prohibited under subdivisions 1, 2 and 3 of section 8 of the Liquor Tax Law, except where prescribed by a duly licensed physician, etc., violates neither section 6 of article I of the State Constitution nor the fourteenth amendment to the Federal Constitution; nor does it deprive the citizen of liberty or property within the guarantees of those instruments.</p>

<p>Appeal—City ordinances—Power op the board op aldermen op the city op New York to prescribe punishment por breach op an ordinance—Evidence—Misdemeanor—Criminal law—Greater New York charter—Code op Ordinances, chap. 3, art. 3, §§ 60-62.</p> <p>The board of aldermen of the city of New York lias power, under the Greater New York charter, to pass an ordinance (Code of Ordinances, chap. 3, art. 3, |§ 60-62) which in effect defines, as a misdemeanor, the maintaining and operating of a carousel without a license, and prescribes a fine or imprisonment for a violation thereof.</p> <p>Where upon a trial for the violation of said ordinance there was no evidence that the defendant operated the carousel in question other than the assumption by his counsel for the purposes of argument or in his opening, the conviction of defendant must be reversed and a new trial ordered.</p>

<p>(1.) Constitutional law—Legislation that arbitrarily and unreasonably interferes witi-i sale of theatre tickets by a ticket broker IS UNCONSTITUTIONAL-LICENSES-THEATRES-EVIDENCE—DUE PROCESS of law—Criminal law—Appeal—1 Code crim. pro., §■ 750.</p> <p>Under section 750 of the Code of Criminal Procedure an appeal lies to the Court of General Sessions of the county of New York from a judgment of the City Magistrates’ Court convicting the defendant of a violation of a city ordinance, even though sentence was suspended.</p> <p>Legislation that arbitrarily and unreasonably interferes with the sale of theatre tickets by one engaged in the business of a ticket broker, is unconstitutional.</p> <p>(2.) Same—Ticket speculators ordinance of New York city.</p> <p>The price-fixing provision of the "Ticket Speculators’ Ordinance” of the city of New York (Code of Ordinances, chap. 3, art, 1, § 11-a) for a license to engage in the business of selling tickets of admission to exhibitions or performances conducted under licenses duly issued, is an unwarrantable interference with the inherent and constitutional rights of an individual, and is void under the constitutional provisions which guarantee all persons against deprivation of their liberty and property without due process of law.</p> <p>(3) Same.</p> <p>Such provision of said ordinance is only secondary to the main purpose of limiting the price which may be charged by the ticket broker, and as a violation of said provision might result in the revocation of the license and subject the offender to fine and imprisonment, it cannot be presumed that it was intended that the licensing feature should survive the nullification of the price-fixing provision which called said section 11-a as a whole into existence, and both provisions being so connected with and dependent upon each other, and the price-fixing provision being unconstitutional. the licensing provision must fall with it.</p> <p>(4) Same.</p> <p>It is essential to the validity of a eity ordinance that it shall be reasonable, and said section 11-a which went into effect December 28, 1918, whereby ticket brokers carrying on business were thereafter required to pay $250 for a license which would expire May 1, 1919, and an additional fee of $250 after that date, must be held to be unreasonable on the ground that the license fee for 1919 was more than necessary to reimburse the city for issuing the license to the ticket broker and for supervision of his business.</p> <p>(5) Same.</p> <p>The ordinance not having been passed pursuant to any specific authority of the Legislature nor adopted by that body the exclusion of evidence on behalf of defendant tending to show that the ordinance was unreasonable and oppressive was erroneous.</p> <p>(6) Greater H. Y. Charter, § 1476.</p> <p>Section 1476 of the Greater Hew York charter which prohibits a license for a public exhibition to appeal, was not intended in the absence of legislative authority to confer upon the board of aldermen the right to prohibit an appeal by a ticket speculator from a judgment convicting him of a violation of section 11-a of the Code of Ordinances of the eity of Hew York.</p>

<p>Indictments—When motion to dismiss granted—Stockbrokers—Grand larceny, second degree.</p> <p>Where an indictment for grand larceny in the second degree charges • that defendants, who are stockbrokers, having in their possession as the agents, bailees and trustees of a named person, one of their customers, the sum of $175, feloniously appropriated said money to their own use with intent to deprive their customer of the use and benefit thereof, and it appears that the charge is based upon the alleged appropriation by defendants of part of the profits accruing to the customer on his speculation in stocks, a motion to dismiss the indictment will be granted.</p>

<p>Indictments—When motion to dismiss granted—Grand jury—Evidence-Penal Law, § 952.</p> <p>Defendant G. was indicted for a violation of section 952 of the Penal Law; he and S. were indicted for grand larceny in the second degree' in obtaining by false pretenses $200 from F.; and G. and three others were indicted for conspiracy to cheat and defraud one H. and others of money by false representation as to the value of a certain stock. The minutes of the grand jury disclosed that all of the charges grew out of the promotion and sale by the various defendants of the stock of the Tex-York Producing Company. The defendant Gr., who at his own request appeared before- the grand jury, was overwhelmed with immaterial, incompetent and vicious questions, and was given no opportunity to say a single word in explanation of the charges against him, and no further testimony was taken. Held, that a motion to dismiss the indictments will be granted, with permission to resubmit the cases to the same or to another grand jury.</p>

<p>Jurisdiction—City Court op Utica—Indictments—Misdemeanors— Grand jury—Laws op 1889, char. 154, §. 4.</p> <p>Under the provision of section 4 of chapter 154 of the Laws of 1889, vesting in the City Court of Utica, in the first instance, exclusive jurisdiction to try and determine practically all complaints for misdemeanors committed within said city, which declares that said section shall not be construed to abridge the powers of any grand jury in the county of Oneida to find any indictment for a misdemeanor committed in said city, such a grand jury has jurisdiction to indict one charged with having committed adultery in said city.</p>

<p>Appeal—When judgment op conviction reversed—Breach op the peace—Meaning op “public place”—New York City Consolidation Act (Laws op 1882, chap. 410), §§. 1458(3), 1459.</p> <p>A private dwelling is not a “public place” within the meaning of section 1458 of the New York City Consolidation Act (Laws of 1882, chap. 410).</p> <p>Where on appeal from a judgment of conviction for a violation of subdivision 3 of section 1458 of the New York Consolidation Act, it appears that the acts of defendant complained of were not committed in a public place, and no claim is made by the district attorney that the public was in fact disturbed or that any one except the complainant knew of defendant’s alleged improper behavior, the judgment of conviction will be reversed and the defendant discharged.</p> <p>The phraseology used in the complaint, as well as in the warrant, being in the precise wording of said section 1458(3), and there being nothing either in the warrant or judgment to show that the magistrate found that in his opinion the conduct of the defendant was such as tended to create a breach of the peace under section 1459 of said Consolidation Act, the judgment of conviction cannot be sustained thereunder.</p>