Volume 6 — New York Criminal Reports

<p>Indictment, when set aside.—Constitution, art. I. § 6.— Code Grim. Prog. § 313.</p> <p>Where a defendant has been compelled to testify against himself before the grand jury, the indictment will be set aside and the case resubmitted to another grand jury.</p> <p>An indictment will be vacated when founded upon illegal evidence1 taken by the grand jury.</p>

The indictment charged in the ordinary form that the defendant on July 5, 1887, did willfully, feloniously, and of his malice aforethought, make an assault upon one Joseph Quinn by shooting the said Quinn and causing the death of said Quinn. The testimony in the case, which was of the most conflicting character, is sufficiently noticed in the opinion of the Court of Appeals.

Motion to quash or set aside indictment. The defendant John Price, alias C. H. Simmons, was indicted for grand larceny in stealing thirty-five $1,000 ■debenture bonds, and the indictment averred a prior conviction of one O. H. Simmons, in the State of Georgia, of an offense which, if committed in this State, would be a felony, and said 0. H. Simmons was alleged to be the defendant.

<p>Murder.—Self-defense.—Evidence.</p> <p>Defendant testified that after a quarrel with his wife, she, with threats against him, made an attack on him with a knife; that after a violent struggle he forced her down on the bed, and in this position with her legs hanging over the side of the bed he fatally cut her throat with another knife which he had seized to defend himself. Held, that this did not constitute self-defense.</p> <p>And further held, upon a consideration of the evidence, that the crime was murder in the first degree.</p> <p>An instruction to the jnry that if defendant lied to the officers who arrested him about the crime, “that must affect his credibility ; . the extent to which it must affect it is for you to say;” is proper, and does not direct the jury to disregard the defendant’s testimony.</p>

<p>Self-defense.—Rights and Duties of one who is assaulted.—Evidence as to other crimes.</p> <p>Where the defendant was himself the cause of the assault made upon . him, and intentionally provoked it, he cannot afterward excuse himself for inflicting needless violence on the person of the other party.</p> <p>To justify blows, as given in self-defense, there must be some reasonable or apparent necessity for them in defense or protection.</p> <p>A defendant, after he has been sworn and examined in his own behalf, may on cross-examination be interrogated as to distinct acts of criminality or misconduct tending to throw discredit on his testimony.</p>

Appeal by defendant, John Batterson, from a judgment of the Court of Sessions of Monroe County, entered June 6, 1887, upon a conviction of defendant of rape. Defendant was indicted with Stephen Adwin, John McKibben and Dennis Reardon for a rape committed on the person of Sophia Kaiser at the City of Rochester, July 18, 1886.

<p>Perjury.—What Questions are Material.</p> <p>Defendant upon his application for an appointment as an officer in the police force in the Oity of New York, returned a false answer to the question of the police commissioners: “Have you ever been complained of, or indicted for any criminal offense ?” Held, that the information sought for by the question was legal and proper to aid the commissioners in determining the moral fitness of the applicant for the position, and that a false answer thereto was perjury.</p>

<p>Compelling Appeabanoe of Defendant Gobpobation.— Motion to set Aside on Indictment.</p> <p>A motion to set aside an indictment cannot be made until the defendant is arraigned thereupon.</p> <p>An indictment will be set aside only upon the grounds specified in section 313 of the Code of Criminal Procedure.</p> <p>There is in the Code of Criminal Procedure no provision for compelling a corporation which has been indicted, to appear before the court and plead to the indictment.</p>

Appeal by defendant, Francis Herman, from a judgment rendered against him in the Court of General Sessions of the Peace of the City and County of Hew York, upon the verdict of a jury convicting him of the crime of grand larceny in the second degree, as charged in the indictment.

<p>Indictment.—Conspiracy.—Penal Code, section 168.— Overt Acts.</p> <p>An indictment states a conspiracy for the perversion and obstruction of justice and of the due administration of the laws, and is sufficient, under section 168 of the Penal Code, which alleges an agreement between the defendants that one of them should procure the appointment of another to an office, to wit, the office-of commissioner of public works in the city of New York, and that in consideration of the obtaining of such appointment the defendant who should be appointed commissioner, while apparently carrying out the duties of his office would in effect abdicate it, and place his resignation in the hands of said other-defendant whenever the same might be demanded, and make-no appointments in said office without the approval of said co-defendant, that he would make such removals therein as that co-defendant might suggest and request, and would transact the business of said office as he might direct.</p> <p>Such an agreement is not an offer to appoint a co-defendant as the deputy of said commissioner in consideration of his procuring the appointment of the other defendant as commissioner, but is an agreement to entirely surrender all the powers of the office, including a resignation therefrom, without limit as to time.</p> <p>"Where, in such an indictment., the more general words that the parties did “unlawfully, wickedly, and corruptly conspire and agree together” to procure the appointment of one defendant for said office by and through the corrupt means of procurement of them, etc., to be nominated by the mayor, etc., to be appointed as commissioner of public works, etc., are followed by an allegation that the acts were done with the corrupt and wicked understanding and agreement and with intent that upon and in the event of one defendant S. being appointed to the office, he should transact the business thereof as another defendant F. might and should direct, etc., and that said defendant S. in pursuance of said further conspiracy gave the above mentioned agreement to his co-defendant F., there is sufficient designation of the means by which the conspiracy was to be effected and carried out.</p> <p>It was contended by defendants that the agreement in question was not a conspiracy for the reason that there was no one act which the parties agreed to do. Held, that the offense charged by the indictment was á conspiracy for the perversion and obstruction of justice and due administration of the laws, to effect which object several acts were to be done leading or tending to the general result, which was the crime charged.</p> <p>Overt acts in pursuance of the conspiracy are sufficiently set forth by the allegations of the indictment that one defendant in pursuance and furtherance of the conspiracy between himself and the other defendants, did make application to the mayor to be nominated, etc., in pursuance thereof, and did make, sign, and deliver to the other defendants the agreement set forth in the indictment.</p>

<p>Boycotting.—Strikes.—Conspiracy.</p> <p>Workmen have a right to seek by all peaceable means an increase of wages, and all meetings and combinations having that object in view, which are not distinguished by violence-or threats, are-lawful.</p> <p>But a combination by workmen to drive out, and prevent from working in a certain district, an objectionable person, is a criminal conspiracy.</p>

<p>Information in the Superior Court in New Haven County for a conspiracy against Benjamin F. G-lidden, David McNamara, Thomas Mulcahv, and Frederick Bushe.</p> <p>The facts are fully stated in the information as set forth in the opinion of the court.</p> <p>A demurrer interposed to the information having been overruled and a trial had, there was a conviction, from which the present appeal was taken by defendants.</p>

<p>Boycott.—Criminal Conspiracy.</p> <p>An indictment states a criminal offense which charges a combination of defendants to ruin, break up and destroy the business of a specified firm, and that by the means used and-the success of the unlawful endeavor it operated upon the peaceful and honest industries of the customers and patrons of that firm to their injury; and the indictment need not particularly state the means to he used by the conspirators.</p> <p>The court instructed the jury in substance that if defendant then on trial for criminal conspiracy and one or more of the other defendants entered into an agreement to coerce a specified firm to discharge against their will certain of their employes and to take into their employment certain other persons whom that firm did not wish to take into its employment, then such agreement was unlawful, and if defendant, in pursuance of said agreement threatened any of the said firm’s customers that the persons making the agreement would injure the business of such customers by intimidating their customers, and maldng them afraid to continue their patronage of the customers of said firm, then defendant was guilty. Held, no error.</p> <p>* The acts, as above specified, of defendant and his associate, commonly called a “ boycott,” are a conspiracy at common law.</p> <p>Every attempt by force, threat, or intimidation to deter or control an employer in the determination of whom he will employ or what wages he will pay is an act of wrong and oppression, and every combination for such a purpose is an unlawful conspiracy.</p> <p>* In law the offense of conspiracy is in the combination for the purpose, and no overt act is necessary to constitute it.</p>

Appeal by defendant Virgil Jackson from a judgment of the Court of Oyer and Terminer of Oneida County, Hon. George H. Kennedy presiding, of April 12, 1888, entered upon a conviction of murder in the first degree. The evidence sufficiently appears in the opinion of the Court of Appeals. I. The court should have granted the application for an order of continuance under the circumstances: 1 Burr. 510, 511; 1 Chitt. Crim.

Demurrer by defentants Charles Smith, Charles Jackson Edward Butler and Morris Isaacs to an indictment. The facts appear in the opinion.

<p>Conspiracy.—Declarations of Co-conspirators.—Order of Proof.</p> <p>Declarations of alleged co-conspirators, made subsequent to the abandonment or accomplishment of a conspiracy, cannot be given in evidence against a co-conspirator.</p> <p>Whether declarations of alleged co-conspirators can be given in evidence before proof has been given of the conspiracy, is a question which rests very largely in the discretion of the trial judge.</p>