Volume 5 — New York Criminal Reports

<p>Motion to quash an indictment.</p> <p>The facts sufficiently appear in the opinion.</p>

Appeal by defendants John M’Grath and Mary M’Grath, from a judgment of the Court of General Sessions of New York, Hon. Henry A. Gildersleeve presiding, of June 15. 1886, convicting defendants of arson in the second degree The following facts which are given somewhat fully, as illustrating the charge of the judge upon the trial: The dwelling-house which was alleged to have been set on fire by defendants was a double tenement-house in the City of New York, known and designated…

<p>Murder—Evidence—Confession.</p> <p>After a witness has gone through the whole narrative of a transaction and stated generally all he remembers of it, the court may allow his attention to be directed to particular facts and conversations comprised therein and relating thereto.</p> <p>After evidence has been given tending to show that a homicide was committed in self-defense defendant can follow it by proof of general reputation of quarrelsomeness and violence of the deceased, but cannot give in evidence specific acts of deceased of violence towards third persons or of cruelty to domestic animals.</p> <p>A voluntary confession otherwise admissible is not rendered inadmissible by the fact that it was made by a person then under arrest at the time it was made.</p> <p>Upon a trial for homicide evidence that deceased robbed 'his father when in his coffin of his grave clothes and wore them at the funeral is inadmissible to show the character of deceased.</p> <p>(By the Supreme Court General Term).</p> <p>Ho particular time is prescribed by law within which deliberation and premeditation must occur to constitute murder in the first degree. The act which caused the death must be deliberate in the sense that it was not committed under the influence of a sudden and uncontrollable impulse produced by a proximate cause and it must be premeditated in the sense that an intention to inflict the injury must have preceded the doing of the act.</p> <p>If the time is long enough for reflection, for choice to kill or not to kill and for the formation of the purpose to kill, that is sufficient.</p> <p>Under section 527 of the Code of Criminal Procedure the Supreme Court on appeal may order a new trial in a criminal case if in any aspect of the case error was committed on the trial, and on such appeal this section has abrogated the narrow and technical rules in respect to criminal cases.</p> <p>It is the province of the jury to determine questions of fact arising upon the evidence and the intent of the prisoner, and it is the duty of the appellate court to accept the verdict in that regard as delivered by the jury.</p> <p>Where a person is assailed by another who attempts to take his life or inflict great bodily injury and the assailed can secure safety by retreat, then it is not necessary to take the life of the assailant to prevent the consummation of the felony attempted.</p> <p>An alleged actor in a crime, who consents to become a witness subjects himself to the same rules and tests that are applicable to other witnesses. Conversations and declarations of a witness inconsistent with his testimony in chief and relating to material issues may be introduced in evidence to contradict him.</p> <p>Comments by the trial judge as to the force and effect of evidence furnish no ground for reversal where the jury was left to weigh the evidence and instructed to determine all the facts arising thereupon.</p> <p>A verdict will not be disturbed because the clerk’s minutes do not show the . whole proceeding in regard to drawing the jury where no prejudice or irregularity in that regard operating to the injury of the defendant is shown by the record.</p> <p>The verdict of the jury in a criminal case will not.be set aside for irregularity or improper conduct on the part of jurors, unless it is shown that the defendant was prejudiced thereby.</p>

<p>Appeal by defendant Henry Burch from a judgment convicting him of embezzlement.</p> <p>The facts appear in the opinion.</p>

Appeal by the defendant John Parr from a judgment of the Special Sessions of Albany convicting him of libel. The libel complained of was published in a paper called “ The Owl,” of which defendant was the editor, and was as follows: “ The Pearl street tailor should not try to come his wiles over M. M. of Division street. He can be seen any day walking on the opposite side of the street, guying the house and trying to entice her out.

Appeal by the defendant, James McIntosh, from a judgment of the Court of Sessions of Fulton County, of 26th December, 1885, affirming a conviction of defendant before a justice of the peace of Gloversville, of 10th September, 1885, of the sale of liquor without a license. The facts appear sufficiently in the opinion,

<p>Testimony of Deceased Witness—IT. S. Constitution. Bill of Rights—Evidence.</p> <p>Testimony given upon a former trial by a witness since deceased, may be read upon a retrial of the case.</p> <p>The provision of the article six of the amendments to the United States Constitution that the accused shall in all criminal trials he confronted with the witnesses against him, applies only to trials in the XT. S. courts for violations of the XT. S. constitution or laws.</p> <p>In this State it is sufficient under the similar provisions of the bill of rights, if the accused be once confronted by the witnesses against him at any stage of the proceeding upon the same accusation, and have an opportunity of cross-examining them.</p> <p>•Where a witness has testified to a confession of the accused it is error to refuse to allow the accused to state the whole conversation with that witness at which the confession was alleged to have been made.</p> <p>It is error to refuse to allow a witness for the prosecution to be asked on cross-examination : “Did you tell Penhollow,” the defendant) “last week that he was guilty, and he knew it ? ”</p> <p>A defendant has a right to show under what circumstances, and where, a witness has shown prejudice and bias against him.</p>

<p>Appeal.—Charge.</p> <p>To justify a reversal by the appellate court under section 527, of the Code of Criminal Procedure on the ground that the verdict was against the weight of evidence, that the conflict of evidence made the case a conflicting or doubtful one; but it must be quite apparent that the verdict was against a substantial and preponderating weight of evidence.</p> <p>Where it is undisputed that a crime Jias been committed oí which complainant was the victim, a statement by the trial judge in his charge, that the crime was one of the most atrocious known to the law, is not terror where thejudge expresses no opinion upon the guilt of the defendant and leaves all the facts to the jury under proper instructions.</p>

Appeals by defendant Alexander Dumar from a judgment of the Court of Sessions of Monroe County convicting him of grand larceny in the second degree. The facts appear sufficient in the opinion.

Appeal by defendant John C. Stott, from a judgment of the Court of General Sessions of New York, Hon. Frederick Smyth, presiding, convicting defendant of abduction of a female under sixteen years of age. The facts as to the offense sufficiently appear in the opinion. Upon the trial of the defendant the following occurred : George H. Young, a witness for the people, testified.

Appeal by defendant, Charles J„ Everhardt, from a judgment of the Court of General Sessions of Hew York, of 7th January, 1886, Hon. Hbnby A. Gildebsleeve, presiding, convicting him of forgery in the second degree. The appellant was indicted in the Court of General Sessions for forgery in the second degree.

Motion by defendant James A. Richmond, that he be furnished a copy of the testimony taken before the grand jury, upon which he was indicted. The facts appear in the opinion.

Appeal by defendant, Egbert Palmer, from a judgment of conviction of assault in the third degree, by the Court of Sessions of Greene county, of 13th April, 1886. » The defendant was indicted at the Greene county Oyer and Terminer, December, 1885, for an assault in the first degree.

It appeared that the indictment charged that the defendant, with intent to cheat and defraud one Thomas Little, did feloniously, unlawfully and designedly, falsely pretend and represent to him that a certain promissory note, made by one Albert Pike for $ 450, payable to the defendant, was made by one Albert Pike, who lived in a certain stone-house in the town of Concord, county of Erie, and that it was not made by a certain other man by that name residing in such town; that…

Appeal by Charles F. Meyers, defendant from a judgment of the Court of General Sessions of New York, Hon. Henry A. Gildersleeve presiding, of 8th November, 1886, convicting defendant of an abortion. The facts appear in the opinion.

Appeal by the people from an order of the county judge of Livingston county discharging the defendant, William Holmes on habeas corpus from arrest. The facts appear in the opinion.

<p>Abductioh.</p> <p>Upon the trial of defendant for the abduction of a female under sixteen years of age, the female alleged to have been abducted, during her acquaintance with defendant at the time of the alleged abduction, had worn a long dress with her hair coiled on top of her head, was put upon the witness stand in short clothes with her hair braided in a child-like way for inspection by the jury as to her age, Meld, error.</p> <p>An entry of the date of the birth of a child made by the father in a family Bible is not admissible to prove the date of such birth where the father is living, and no effort to find and produce him is shown.</p>

Appeal by the New York Catholic Protectory, from an order of 7 January, 1887, of the Supreme Court, Special Term, Hon. Charles H. Van Brunt, presiding, discharging eon Florence Van Riper, from the custody of the New York Catholic Protectory. The facts appear in the opinion.

<p>CHANGE OE PLACE OE TRIAL.</p> <p>To entitle a defendant to a removal of a criminal action to another county, he must make out a clear and convincing case that by reason of popular passion or prejudice, he cannot have a fair trial in a county where the venue is laid.</p> <p>Defendant was examined in the county in which the venue is -aid, before a legislative committee of investigation of alleged bribery of certain aider-men, and it is probable that his testimony before that committee, and newspaper comment thereon, may have caused those who read the same to think that his failure to account for what he did with large sums of money and securities of great value, required further explanation than he then gave. Held, not sufficient to authorize a change from said county of the place of trial of an indictment against defendant for bribing said aldermen.</p> <p>If defendant desires a change of place of trial of a criminal action by reason solely of newspaper denunciation, he must, especially where the place of publication of said newspapers is a large city where the choice of jurors is great and varied, show that this denunciation has had some effect, by way of popular expression, prejudicial to his rights.</p> <p>A belief that certain aldermen acted corruptly does not render a juror incompetent to investigate the question as to who corrupted them.</p>

<p>Evidence—Admission by silence!</p> <p>A witness for the defense who testified only that at a certain time she was with one S., another witness, and saw him leave her and go toward defendant’s house, was asked by the prosecution on cross-examination whether she had not made certain specified statements to two officers relating to the subsequent movements of defendants after the time mentioned. She denied having made such statements. Held, that as to the statements the testimony was new matter brought out by the prosecution, and that the prosecution could not contradict the witness in regard thereto.</p> <p>The silence of a defendant when he should have spoken cannot be taken to be an admission unless it is proved that he heard the statement which he should have denied.</p> <p>The question whether a person heard a certain statement cannot be determined by the opinion of witnesses.</p> <p>There being conflicting evidence as to whether defendant heard certain declarations, the court said to the jury: “ My recollection is that ” the other officer ‘ ‘ was very positive that the defendant heard these declarations, but this is a question for you whether he did or not.” In fact, no other officer had so testified. Held, error calling for reversal.</p>

<p>Insurance by Insurance Agent after knowledge of Loss of Property Insured—Charge—Place of Commission of the Offense—Code Grim. Pro., § 134— Evidence.</p> <p>Defendant, with another, was in the insurance bu iness at the city of Buffalo, being agent for several insurance companies. Defendant was indicted and tried for grand larceny, in that, he, after having knowledge of the loss of a vessel, cancelled a policy of insurance thereon, in the Continental Company, and reinsured said vessel for $5,000 in the Thames and Mersey Company. Held, that to constitute the crime of larceny, it was necessary that the reinsurance in the Thames and Mersey Company be illegal, because if the act was within the power of the firm as general agents of the company to do it, the alleged offense could not arise out of the obtaining from the company of payment of the amount, whatevemay have been the motive of the defendant in so charging it with liability</p> <p>While a contract of Marine Insurance entered into after the loss of the subject of it when both parties to the contract had full knowledge of the situation may be effectual as such, no agency, however general in terms, even though it be with power to insure vessels “ lost or not lost,” would be deemed to embrace the power to insure property after, and with knowledge of, its loss.</p> <p>The court refused to charge that if the jury found that the cargo of the vessel was reinsured in the Thames and Mersey after the defendant had notice of the loss, if he believed he had the right to make such insurance no crime was committed by him. Held, no error, that the defendant might have such belief, and still intend to defraud the company.</p> <p>An entire charge will be considered in aid of the interpretation and effect of jts several parts and an apparently erroneous sentence or phrase may ordinarily be deemed modified and relieved from such error by other portions of the charge, stating the correct rule for the guidance of the jury, but when an important proposition is erroneously stated to the jury, and not distinctly withdrawn, it does not necessarily follow that it may not have a prejudicial effect, although a rule complete in itself for the action of the jury is properly charged, and such charge is therefore error.</p> <p>The draft for the amount of the loss was drawn in Buffalo by defendant in the name of his firm upon the General Manager of the Thames and Mersey Company, in New York city, where it was accepted, and a check drawn by him to pay it on a bank in the latter city, and it or the proceeds were received in Buffalo by the defendant for his firm. Meld, that the offense of larceny was committed in Buffalo.</p> <p>Semble, that the courts of New York city might also have jurisdiction of the offense.</p> <p>Where a witness has been asked on cross-examination whether he verified certain complaints in civil actions, and whether he therein swore to certain specified matters, it is error to introduce in evidence on the redirect, for the purpose of showing what he did swear to, parts of those complaints relating to other things not embraced within the matters testified to in the cross-examination.</p> <p>When incompetent evidence may have a tendency to arouse the prejudices of the jury, it cannot be deemed to be harmless, especially where there are close questions of fact upon conflicting testimony, and where the verdict must depend somewhat upon inferences to be drawn therefrom.</p> <p>A general objection to evidence that in no view is competent, is sufficient.</p>

<p>Corroboration or Accomplice—Evidence.</p> <p>Where a fact proved or corroborated is consistent with innocence, it cannot he accepted as.a proof of guilt.</p> <p>The existence of intimate social relations is not a circumstance, standing alone from which participation in the guilty acts of an associate is to be presumed.</p> <p>To sufficiently corroborate the testimony of an accomplice there should be some fact testified to independent entirely of the accomplice’s evidence, which taken by itself leads to the inference, not only that a crime has been committed, but that the defendant is implicated in it.</p> <p>The mere presence of the accused at the time and place of the crime is not in itself sufficient corroboration of the testimony of an accomplice.</p> <p>A statement made long after the commission of the crime, and after he had been in frequent communication with the guilty party, that he did not do it, but that he knew who did dp it, does not tend to prove the guilt of the defendant.</p>

Appeal by the People from an order made 26th November, 1886, by Mr. Justice Ingalls, at Chambers, granting a new trial to defendant, under § 465, subdivision 7, of the Code of Criminal Procedure, on the ground- of newly discovered evidence.

Appear by defendant James Sands, from a judgment of the Court of General Sessions of New York, of 26th April, 1886. Hon. Henry A. Gildersleeve, presiding, convicting defendant of larceny in the second degree. The facts appear in the opinion.

Appeal by defendant Emil Brie, from judgment of the Court of General Sessions of New York City and County, convicting the defendant of the forgery of certain certificates issued by the State of Missouri. The facts appear in the opinions.

Appeal by defendant George Clements from a judgment of the Court of Oyer and Terminer of Washington County convicting him under section 600 of the Penal Code which prohibits the overdrawing of his account and the wrongful obtaining of money, etc., thereby of an officer of a bank. The facts sufficiently appear in the opinion.

Appeal by defendant George Clements from a judgment ■of the Court of Oyer and Terminer of Washington County-convicting him of perjury. The facts appear in the opinion.

<p>Motion to set aside indictment. Code Cbim. Peo., § 313.</p> <p>A defendant in moving to set aside an indictment is not confined to the grounds specified in section 313 of the Code of Criminal Procedure.</p> <p>The provisions of section 813 of the Code of Criminal Procedure, have only reference to motions based on the grounds therein stated, and require that motions based on those grounds be made before the defendant pleads to the indictment.</p> <p>Semble, that on such a motion affidavits may he used.</p> <p>When a case has been re-submitted to grand jury by direction of the court upon sustaining a demurrer to an indictment, the operative power of that- direction ceases and the case cannot afterward he submitted to another grand jury by virtue of that direction.</p> <p>Where after a case has been re-submittcd to a grand jury by direction of the court, and a new indictment found, if thereafter, without the direction of the court, another indictment be found for the same offense, the latter indictment will be set aside.</p>

Appeal by defendant, John O’Neil, from a judgment of the Court of Oyer and Terminer of New York County. Hon. Geo. C. Barrett presiding, of 11 February, 1887, convicting him of bribery. The defendant was indicted at the April session of 1886 of the Court of General Sessions of the Peace, held in and for the City and County of New York.

Appeal by defendant from a judgment of conviption of 19 December, 1885, of burglary in the third degree of the Court of Oyer and Terminer of the County of Broome. The indictment in this case was as follows : “ The Grand Jury of the County of Broome by this indictment accuse Dan. S. Richards, William E. Taylor and Robert Richards of the crime of burglary in the third degree, committed as follows, to wit: The said Dan.

<p>Cebtiobaei—Betting on Races—Penal Code, Sec. 351.</p> <p>Upon a return of a writ of certiorari to review proceedings before a committing magistrate, the evidence taken before the magistrate should in some way be brought before the court either by the return of the magistrate or by some direction of the court.</p> <p>The supreme court upon the return to a writ of certiorari to review a commitment, should inquire into the whole case, hear and examine all the evidence and dispose of it upon the merits as it shall be found upon the proofs offered.</p> <p>An agreement by which complainant sent through defendant to a third party at the Sheepshead bay race track, a sum of money to be invested by said third party on a race to be that day run, considered by the court and held to constitute a violation of Sec. 351, of the Penal Code, prohibiting keeping or occupying with books, etc., for the purpose- of recording or registering bets or wagers.</p> <p>A person who engages in a transaction which is illegal, cannot protect himself by declaring it to be something else innocent and legal.</p>

Appeal by the defendant Jacob Sharp from a judgment of the Court of Oyer and Terminer of New York County, of July 14, 1887, entered upon a verdict after a trial, Hon. Geo. C. Babbett presiding, convicting him of the crime of bribery.

The facts in the first case, (Matter of Marti), were as follows: The relator, John E. Gill was arrested, together with others upon a complaint of Odber M. Hartt, charging him with said other persons of having unlawfully conspired to prevent the complainant from exercing his lawful trade and calling, also to commit an act injurious to trade or commerce, etc. It appeared from the complaint that Hartt was formerly in the employment of Gardner & Estes, as foreman in their…

<p>Assault In First Degree—Foison.</p> <p>To convict of assault in the first degree by poisoning, it is necessary to prove that by the administration of the poison life was endangered.</p>

<p>Burglary in First Degree.—When Proven, no Conviction under § 505 Penal Code, oe misdemeanor.</p> <p>Where the proofs establish all the elements of burglary in the first degree, as charged in the indictment, the prisoner Is not entitled to a charge that the jury may convict of a misdemeanor, under § 505 Penal Code.</p>

<p>Certiorari—Function of—Sentence—Detention pending Appeal and Stay.</p> <p>The only office of the writ of certiorari obtained with a writ of habeas corpus, is in aid of the latter writ, and it issues only that the court may see from the record what is the alleged ground of the detention of a person seeking discharge. Per Patterson, J.</p> <p>The writ of certiorari to review is abolished in criminal cases and the questions whether the indictment was found by a properly constituted grand jury, and whether the court of General Sessions had jurisdiction over the offense, it not appearing that the acts on which the indictment was based were committed in the county of New York, cannot be raised thereby. Per Patterson, J.</p> <p>Where one has been detained, pending appeals taken by him from a judgment of conviction, upon which appeals he has obtained continuous stays of proceedings, he cannot claim his discharge upon the ground that he has. satisfied the sentence though he has been detained the full period thereof, allowing for good behavior, etc. It must be held that he has not begun to serve his term under the judgment. Per Patterson, J., at Special Term.—Van Brunt, P. J., Brady and Daniels, JJ., at General Term.</p>

Civille, of the crime of larceny in the second degree. The indictment which was found in said General Sessions, February 26, 1886, contained two counts—one charging the larceny as agent, the other charging the larceny as clerk and servant, of a specific sum of money, $75, the property of a Mrs. Mary Herter. The facts appear in the opinion.

Appeal by the defendant William N. Savage, from a judgment rendered in the Court of General Sessions of the Peace in and for the City and County of New York, upon the verdict of a jury convicting him of the crime of forgery in the second degree as charged in the indictment.

Appeal, by defendant, Andrew J. Wightman, from a judgment rendered against him by the Court of Oyer and Terminer in and for the City and County of New York, upon the verdict of a jury convicting him upon his separate trial of a felony, viz : blackmail, under § 558 Pen. Code, as charged against him and others jointly in the first five counts of the indictment. Also appeal from the judgment of the general term of the first department affirming the above judgment of conviction.

Appeal by defendant Daniel Driscoll from a judgment of the court. General Sessions of Hew York, September 30, 1886, Hon. Frederick Smith, presiding, on conviction of murder in the first degree. The facts fully appear in the opinion.

The defendant John M. De Graff, was indicted and convicted upon trial before the Schoharie county sessions, for wrongfully obtaining, receiving and converting to his own use, on or about February 1,1882, the sum of $400 of the money of the county, with intent to defraud the county.