Volume 4 — New York Criminal Reports

Appeal by defendant, Alexander H Eeavey, from a judgment of the Court of General Sessions of New York, of 6th January, 1885, Hon. Rufus… Held: and therefore alleges that the said Plato, Von Reitzenstein and Strong .were, at the aforesaid time .and place, conversing together about affiant and about this casa Immediately after the close of the said conversation, the said Plato went across the court room and entered into conversation with one Groodhart, a juror, serving upon…

Appeal by defendant, David H. Crowley, from a judgment ■■of the Court of General Sessions of New York, Hon. Frederick Smyth presiding, of 18th May, 1885, convicting defendant of -rapa The prosecutrix, Maggie Monis, was a young working girl, .sixteen years old, living with her mother, and of chaste charac.tcr, so far as appeared on the trial. The defendant was a sergeant of police in the city of New .'York.

Appeal by John Carpenter, defendant, from a judgment of the Court of Oyer and Terminer of New York county, Hon. George C. Barrett, presiding, of July 3, 1885, convicting him of murder in the first degree. A previous conviction of the defendant for the same offense was reversed by the General Term (3 N. Y Grim. Bep. 92), and the present appeal is from a judgment of conviction upon a second trial.

Appeal by Kortright Cruger, defendant, from a judgment-of the Court of Oyer and Terminer of New York county, Hon. Charles H. Yan Brunt, presiding, of June 1, convictmghim of grand larceny. The defendant was engaged in the business of buying and! selling jewelry, and of effecting loans upon personal property, in Maiden lane, in the city of New York; he carried little if any stock, but sold jewelry by advertising and catalogue.

Appeal by the people, respondent, from a judgment of the General Term of the Supreme Court in the third department, of September, 1885, reversing a conviction of the defendant, Arthur Cipperly, of selling adulterated milk, in violation of Laws 1884, chapter 202. The facts and briefs of counsel will be found in 8 H Y. Grim. Rep. 385, The dissenting opinion of Judge Learned, adopted as its opinion by the Court of Appeals, will be found at page 401 of that volume.

Appeal by. the relator, Richard Stokes, from an order of Hon. Wm. S. Kenton, county judge of Ulster county, of February 9, 1885, dismissing a writ of habeas corpus.

Appeal by the defendant, Frank Mondon, from a judgment of the Court of Oyer and Terminer of Herkimer county, Hon. T. 0. Williams presiding, of May 23, 1885, convicting defendant of murder in the first degree. The facts in this case appear to be, in brief, that the body of ■ John Wishart was found in a ditch upon the land of Sanford ■ G-etman in the town of Frankfort, by his son Adam, on the 8th day of May, 1884.

The defendant was indicted in said court, October 28, 1885, for the unlawful practice of medicine. The indictment contained three counts, each describing the same act, and drawn respectively under section 856 of the Penal Code and sections 1 and 2 of.chapter 513 of the Laws of 18¿0. The jury returned a verdict of guilty, and thereupon the court rendered judgment for a fine of one hundred and fifty dollars. From that judgment the appellant appealed to this court.

Eufus B. Cowing, city judge, presiding, rendered January 11,1886, convicting defendant, Daniel Kerin,, of the misdemeanor of selling oleomargarine for butter in violation of the provisions of section 8, chapter 183, Laws of 1885,. as amended by chapter 458 of the laws of the same year. • Upon the trial the defendant admitted that at the time and place mentioned in the indictment he had in his possession a. quantity of an article from which the sample was taken, which, was…

Bufus ¡B. Cowing, city judge, presiding, rendered Hovember 29, 1885, and convicting defendant, Benjamin J. Hill, of the misdemeanor of selling oleomargarine for butter, in violation of the provisions of section 8 of chapter 183, as amended by chapter 458 of the Laws of 1885. (This appeal was argued at the same time as that in People v. Kerin, supra, p. 140).

<p>Jury—Challenge for cause—Objection, when ground OF, MUST BE STATED—ERRONEOUS EVIDENCE, ADMISSION OF, WHEN NOT ERROR—MURDER, EVIDENCE OF motive—Premeditation, &c.—Police MAGISTRATE, PROCEEDINGS BEFORE, AS EVIDENCE.</p> <p>Upon the trial of a challenge for cause it appeared that the juror at the time of the murder had read some notice of the circumstances in one newspaper and more recently in another, but he stated he had no “formed impression about it,” or “firm opinion”; “such opinion or impression as he had he could lay aside and sit as a juror in this case, and render an impartial verdict according to the evidence.” EM, that it was for the trial court to determine whether the juror entertained such opinion or impression as would influence his verdict; that it appeared he had no prejudice against the prisoner, and his mind was free to receive the evidence and decide upon it fairly and impartially, and that, therefore, he was qualified to sit.</p> <p>A ground of objection to the admission of evidence not stated upon the trial cannot be urged in support of such objection on appeal to the Court of Appeals;</p> <p>If evidence be erroneously admitted, e. g., tending to show the existence of premeditation, &c., on the part of defendant, it cannot be urged as a ground of reversal, where the other evidence on the same point is full and complete, and the admission of the evidence in question could not have prejudiced defendant.</p> <p>Upon the trial of an indictment for murder in the first degree, that a complaint to a magistrate for failure to support, &c., was made by the deceased against the defendant, her husband, about ten months before the killing, is a material fact.</p> <p>In this case it appeared that on the trial the magistrate produced the record on such complaint and read from it, and no objection was taken to its form or substance, but merely that it was immaterial and irrelevant. Held, if any error were committed in receiving parol evidence it was corrected by the subsequent introduction of the papers; that in the absence of a specific objection it was not necessary to show that the magistrate acquired jurisdiction over the matter.</p> <p>The evidence in this case reviewed and held sufficient to establish premeditation and deliberation in the killing for which defendant was committed.</p>

<p>Bribery—Bill op particulars.</p> <p>To entitle the defendant to a bill of particulars, the indictment must be so general in its allegations that it does not give him adequate notice of the charge he is required to meet.</p> <p>Where it appears upon the face of the indictment against the defendant for agreeing to accept a bribe, that the name of the person offering said bribe is unknown to the grand jury, and there is no evidence that such information is in the possession of the district attorney, the court will not order the giving of such name by a bill of particulars. Defendant is not entitled, as a matter of right, to the evidence taken before the grand jury, or to an inspection of their minutes, except for a special reason, such as to move to set aside the indictment.</p> <p>Especially should such an application be denied, when its granting would give information to other persons charged with crime and not yet in custody.</p> <p>Application by defendant, Henry W. Jaehne, for a bill of particulars, and for permission to inspect and copy the minutes of the grand jury which found the indictment against him.</p> <p>The facts appear in the opinion.</p>

<p>’Evidence of another offense—Intent—Blackmail— Malicious annoyance.</p> <p>'■Opon the trial of an indictment for blackmail and malicious annoyance, evidence of the sending by the defendant of a letter similar to that upon which the indictment is based, under like circumstances and at or about the same time, is admissible upon the question of intent, though such letter was sent to a person other than complainant, and is in no way connected with the crime charged.</p>

<p>Murder—Trial—Evidence.</p> <p>Where a witness is asked to answer a question yes or no, and the opposing counsel perceives that he is not answering the question in that way, but is proceeding to give an answer which has been previously stricken out, he should stop the witness and arrest the answer. He cannot lie by" and speculate on the chances of first hearing what the witness would testify to, and, when he finds the testimony unsatisfactory, move to-' strike it out.</p> <p>Whether or not the court will, under such circumstances, strike out an.</p> <p>answer given, generally rests in its discretion, which is not reviewable. To a question, “I again ask you if you ever heard him make any such threat?” an answer, “Not in my presence,” is responsive, and should not be stricken out.</p> <p>Hearsay evidence of threats alleged to have been made by defendant against, the deceased, was admitted on his trial for murder in the first degree. Upon a review of the evidence, held, that the case against'defendant was so strong, and his murderous intent and his threats against the deceased, were otherwise so fully proven that the admission of the evidence objected to, particularly after the court had just stricken out similarevidence as hearsay, could not have influenced the verdict, and a refusal to strike out such evidence furnishes no ground for reversal under - Code Criminal Procedure, § 542.</p>

Appeal by defendant, John Carpenter, from a judgment of the General Term of the Supreme Court in the First Department, of 22d January, 1886,… Held: on a trial for murder by violence, that it was not competent for the physicians “ who made the postmortem examination, after having described the appearance of the wounds to the jury, to give their opinions in evidence as to the kind of instrument by which the wound was caused.” The questions there condemned were: “ From your…

A. J. ISTorthrup presiding, by which defendant was found guilty of the crime of perjury, and from an order denying a motion on behalf of the defendant to set aside the proceedings and trial herein, and in arrest of judgment, and from an order denying a new trial on the minutes.

Appeal by defendant from judgment of conviction of assault in the second degree in the Court of Sessions of Ontario county, Hon. William H. Smith-presiding. The indictment was found February 15,1884, in the Court of Oyer and Terminer of said county, and contained two counts.

<p>Bail exonerated by extradition of prisoner.</p> <p>.A defendant held under bail was without the knowledge or consent of his bail arrested under a warrant of the governor of this State on a requisition issued, by the governor of New Jersey, and was extradited thereunder and delivered to the authorities of the State of New Jersey: Held, that the bail was exonerated and discharged.</p>

Appeal by Delos D. Wentforth, defendant, from a conviction of bigamy in the Court of Sessions of Herkimer county. In the year 1876 the defendant, who was then about thirty years old, lived with his parents on a farm in the town of German Flats, Herkimer county, and in December of that year one Mary Sullivan, a young lady to whom defendant rad paid some . attention, went to the house of defendant’s parents, at first apparently as a domestic.

Appeal by defendant, Seymour Bates, from a the Court of Sessions of Tompkins county, uphol judgment of ling the conviction of defendant at a Court of Special Sessions of a violation of the excise laws. Defendant, who resided in the town of Ulysses, Tompkins county, was arrested on a warrant issued by a justice of the peace of said town, charging him with having sold liquors in the town of Covert, in Seneca county, and within fifty feet of the boundary line of Tompkins county.

Appeal by defendant, George W. Evans, from a judgment ■of the Court of Oyer and Terminer, 22d January, 1886, Horn George 0. Barrett, presiding, convicting defendant of manslaughter in the first degree. The evidence upon the only point passed on by the General Term appears in the opinion.

Appeal by defendant; Charles A. Buddensieck, from a judgment of Court of General Sessions of the county of Hew York, Hon. Frederick Smyth presiding, of June 23, 1885, convicting defendant of manslaughter in the second degree. For many years before the commission of the offense charged in the indictment, the defendant had been engaged in the business of erecting in the city of Hew York buildings- and other tenements or flats, which were designed as habitations for the poor.

Zimmerman of the crime of rape. The defendant was tried on an indictment found in said court, charging a rape on one Martha Zimmerman, his daughter, alleged to have been committed October 18, 1885.

Appeal by defendant, Alexander Sweeney, from a judgment of the Court of General Sessions of New York county, Hon. Frederick Smyth, presiding, of November 25, 1885, convicting Mm of murder in the first degree. The facts appear in the opinion.

Appeal by defendant, George Beatty, and others, from a judgment of the Queens County Court of Sessions, which affirmed a judgment of a Court of Special Sessions, convicting defendant of unlawfully taking and carrying away the oysters of another, planted in a certain oyster bed in Queens county.

Appeals from an order made December 22, 1885, by Justice Churchill, in the city of Oswego, admitting to bail John Navagh and James A. Milne, and directing their discharge from the custody of William B. Brink and Bobert McNaught, by whom they were held in virtue of a warrant issued by Justice Donohue, who resided in the city of New York, commanding Brink and McNaught, municipal police officers of the city of New York, named in said warrant, to “ arrest the said John Navagh…

<p>One who has been convicted of intoxication in a public place; in violation of Laws of 1857, chapter 628, section 17, as amended by Laws of 1869, chapter 856, has been convicted of a crime under Laws of 1882, chapter 410, section 268, Consolidation Act, and is ineligible to hold the position of police officer in the city of New York.</p> <p>Writ of certiorari to review the proceedings of the police commissioners .of the city of New York, in removing Robert Kopp, the relator, from the position of policeman in the city of New York.</p> <p>The facts appear in the opinion.</p>

Motion in arrest of judgment, by Pierico Marra, defendant. Joseph Borocko went, on September 17, 1885, to the United States post-office, in the city of New York, to send some money by registered letter to Italy. Defendant, who was an interpreter, met Borocko, in the post-office building, and obtained possession of the money contained in the letter for the purpose of having it registered.

Trial of defendant, John 0. Stott, for abduction, before Smyth, ¡Recorder, and a jury.

Demurrer to indictment The defendant, George Lenhardt, together with forty-six others, was indicted April 26, 1886, in the Court of General Sessions of New York, of the crimes of conspiracy {Penal Code, § 168, subd. 5) and coercion (§ 653, subd. 3). Thereafter certain of the defendants demurred to the indictment on the grounds set out-in the opinion. The indictment contained four counts.

<p>Irregularities op grand jury—Evidence, before.</p> <p>After the grand jury was impanelled, one W. wrote a postal card to its members requesting them to call upon him, had interviews with them, called iheir attention to a case to be brought before them, requested their investigation of the same, and made various statements regarding - the facts of the case to them. Held, that an indictment thereafter found by the grand jury in such case should be set aside on the ground of improper influence.</p> <p>Such acts of W., although grossly improper, are not a criminal contempt of court.</p> <p>The affidavits of the grand jurors in such case will not be received to contradict the presumption that they were influenced by such communications. Code Civ. Pro. § 8.</p> <p>An indictment found upon the testimony of a physician as to privileged communications between himself and his patient, the disclosure of which is forbidden by Code of Civil Procedure, section 884, will be set aside. The grand jury can receive none but legal evidence which would be admissible on the trial.</p>

<p>Murder—Deliberation and Premeditation.</p> <p>Upon the trial of an indictment for murder in the first degree, the defendant testified that the deceased forcibly entered defendant’s dwelling house, struck him, pushed him against the wall, and seized him i_y the t ir. at; that defendant, in self-defense, reached out for and “used” a b.itcher-knife on deceased, and got him down and choked him until he (defendant) was afraid he had killed deceased. On cross-examination, defendant testified that immediately after the above occurrences, he obtained an axe and struck dece .sed on the head with it, s > that the blood flew up against the door, and it further appeared that said blow was the immediate cause of the death of deceased.</p> <p>Meld, (following People e. Majone, 1 M. Y. Grim. Rep. 94; People v. Conroy, 2 Id. 565, and People *. Leighton, 88 N. Y. 117), that a verdi t of murder in the first degree should be upheld; that laying aside other facts and circumstances in the case bearing on the subject, tue defendant’s last act, the procuring of the axe and its use upon his prostrate and helpless victim, with the certain result o£ immediate death, discloses the existence of thought and consideration, and, in law, a deliberate and premeditated design to accomplish what of necessity must and did actually follow; further held, that the jury were not bound to accept defendant’s exculpatory statements as absolutely true.</p>

<p>Appeal from a judgment or sentence of the Court of General Sessions of the county of Hew York, convicting the defendant, John Joyce, of the crime of robbery, after his conviction and punishment for another felony.</p> <p>The facts appear in the opinion.</p>

Appeal by tbe defendant, George Ogle, from a judgment of the Court of General Sessions of Hew York county, Hon. Frederick Smyth presiding, on 4th February, 1886, convicting him of murder in the second degree. There was error in permitting the district attorney to inquire as to a previous, arrest and indictment of the defendant for shooting. People v. Irving, 2 N. Y. Crim. Rep. 171; People v..

Trial of an indictment for murder in the first degree. The defendant, Frank H. Walworth, was indicted June 9, 1873, in the Court of Oyer and Terminer of Hew York county, for the killing of his father, Mansfield Tracy Walworth, June 3, 1873, and on June 24, and thereafter till July 2,1873, was tried in said court, the Hon. Ho ah Davis, presiding.

Henry A. Moore, presiding, convicting defendant, Lipman Arensburg, of a violation of section 1, chapter 183, Laws of 1885, and chapter 458 Laws of 1885.

Trials, of indictment for extortion, under sections 552, 553, Penal Code. The defendants, Paul Wilzig and others, were indicted April 30, 1886, under the above statute, in the Court of General Sessions of New York, which indictment was thereafter ordered to the Court of Oyer and Terminer for trial Defendants Michael Stroh and A. Eosenberg pleaded guilty.

Trial of an indictment for conspiracy, under subdivision 5, section 168, Penal Code. The defendants, Paul Kostka and sixteen others, were indicted April 10, 1886, in the Court of General Sessions of New York, under the - above statute, and also under section 653, subdivision 3, Penal Code, and said indictment was thereafter transferred to the Oyer • and Terminer for -trial.

The relator, Charles B. Templeman, was arrested and taken before Andrew Walsh, a police justice in the city of Brooklyn, June 3, 1886, and was by him tried, June 7, 1886, and adjudged guilty of the misdemeanor of assault in the third degree, and was thereupon sentenced to one year’s imprisonment and fined two hundred and fifty dollars.

Motion by defendants, Rollin M. Squire and Maurice B. Flynn, to remove an indictment from the Court of General Sessions to the Court of Oyer and Terminer of the county of Hew York, and also from the county of Hew York to some other county,

Upton, of the crime of. knowingly overdrawing and thereby wrongfully obtaining money, notes, drafts and funds of such bank, he being at that time its president. The indictment contained five counts, in each of which a, separate and distinct offense was set forth, as having, been committed on different days, in taking money in different sums.

The indictment was found November 14, 1885, and defendant pleaded not guilty and was tried November 15, 1885, before Hon. J. S. E. L’Amoreaux and a jury, was found guilty and sentenced to confinment in the State prison for three years and six months. The facts appear in the opinion.

The defendant John Parr was convicted of the crime of criminal libel, under section 242 of the Penal Code, in the Special Sessions of Albany county, and thereafter made this motion.

<p>Variance—Excise Law.</p> <p>•Where the indictment charges a violation of the excise law hy felling, etc., on Hay 18, 1884, and the proof is of a selling on April 20, 1884, the var.ance is fatal.</p>

Appeal by defendant from order granting injunction. The defendants were sued as a “ body duly created by law specially charged with enforcing the laws of this State and preserving the peace of the city,” and the complaint alleged that the defendant by its servants and policemen have threatened to arrest the plaintiff and all his employees, and to interfere with plaintiff’s business and prevent him from carrying on the same at his place of business in the city of New York,…

<p>Evidence—Juror.</p> <p>The erroneous exclusion of evidence is cured hy the subsequent admission of that evidence.</p> <p>A party cannot complain that a question is not fully answered when the incompleteness of the answer is due to the party’s objection.</p> <p>A juror is competent who testifies that he has an impression as to the guilt or innocence of the prisoner, but that his impression will not influence his verdict; that he can render an impartial verdict according to the evidence; and that he will give the prisoner the benefit of every reasonable doubt, and acquit him if such doubt exists.</p>

<p>Extradition.</p> <p>A fugitive from justice who, without force, has been enticed into the State by false and fraudulent representations on the part of the complainant or some one interested in the prosecution, comes voluntarily within the State, and may be arrested in and extradited from the State.</p> <p>A person who fled from the State of Pennsylvania into Canada as a fugitive from justice, upon coming into this State may be extradited to Pennsylvania.</p>

. Motion to vacate an ex parte order for the examination of Charles Reilly, commissioner of jurors, made at Chambers, in the First Department, on application of defendants. The opinion states the facts.

Lawrence county, March 25, 1886, sentencing the defendant, Edgar Powell, to State prison for the term of three years.

<p>Application for the extradition of Thomas Mitchell.</p> <p>The facts appear in the opinion.</p>