motion of defendant under § 671 of that Code. People v. Beck-
with,
See APPEAL; ARREST OF JUDGMENT; BILL OF PARTICULARS; FORGERY,
6; GRAND JURY; HABEAS CORPUS; INSANITY; PETIT JURY; SEN-
TENCE; TRIAL; WARRANT OF COMMITMENT.
PRESUMPTIONS.
See INSANITY; MURDER.
PRINCIPAL AND ACCESSORY.
See People v. Ryland, 441.
PRINCIPAL AND ACCOMPLICE.
The presence of one charged with a misdemeanor, at or near the place
of commission of such crime, is not required to render him a prin-
cipal offender, whether the crime be committed through an ac-
complice or other agency.
See WARRANT OF COMMITMENT.
See RESISTING PROCESS.
PROPERTY:
QUESTIONS OF FACT AND OF LAW.
See ASSAULT, 1, 3; BLACKMAIL, 4; FALSE PRETENSES, 2; MURDER, 11;
OBSCENE, &C. PICTURES.
See ASSAULT, 2; COURTS, 2.
RESISTING PROCESS.
The owner of personal property is liable to indictment for using force
to prevent an officer from levying upon such property, by virtue
of an execution against another person, where the officer acts in
good faith believing the property to be that of the execution
debtor (per SMITH, P. J., BARKER, J., dissenting). People v.
Hall,
SANITARY LAWS.
See CONSTITUTIONAL LAW.
SEAL OF COURT.
See FORGERY, 8
SECOND OFFENSE.
1. Defendant was convicted under the Penal Code of the crime of
forgery in the first degree, committed after said Code went into
effect, and the indictment and proof also showed that he had
prior thereto been convicted of forgery in the third degree under
the Revised Statutes. Under the Penal Code the punishment for
forgery in the first degree is imprisonment for a term not less than
ten years. Held, that under § 688, Penal Code, in relation to
second offenses, the court had no discretion as to the sentence to
SECOND OFFENSE-continued.
be imposed, but was obliged to sentence defendant to imprison-
ment for life (DAVIS, P. J., dissenting). People v. Raymond, 295
2. That under said section, any person who has been convicted of a
felony within the state, who therefore is convicted of the commis-
sion of any crime therein, is to be punished as follows: If the
second offense is such that upon a first conviction of it, he might
be punished in the discretion of the court, by imprisonment for
life, he must be sentenced to imprisonment for life. If the second
offense is such that upon a first conviction of it he might be pun-
ished by imprisonment for any term less than his natural life, he
must be sentenced to imprisonment for a term not less than the
longest term, nor more than twice the longest term, prescribed
upon a first conviction (DAVIS, P. J., dissenting). Ib.
8. That said section 688, Penal Code, is not void as an ex post facto
law as to this case, though the punishment is increased by reason
of offenses committed prior to its passage, Ib.
SEDUCTION UNDER PROMISE OF MARRIAGE.
1. A promise of marriage upon condition that the intercourse results
in pregnancy falls within the statute (L. 1848, ch. 111.) making
seduction under promise of marriage of an unmarried female of
previous chaste character a crime. People v. Hustis,
2. Defendant on cross-examination, on the trial of an indictment for
seduction, was, in substance, asked if he had not said to the
father of the prosecutrix that his own father had untruthfully said
that he (the defendant) would rot in jail before he would marry
prosecutrix, and he denied having so said. Held, that evidence
in contradiction of said denial was competent. People v. Ec-
kert,
470
3. In this case, the defendant at the time of the alleged seduction was
about sixteen years of age, and the prosecutrix was about six years
older, and a woman of very considerable experience with men of
her own age, and had known defendant from his boyhood. It
appeared that the illicit intercourse was not confined to one occa-
sion, but was deliberately permitted from time to time till within
two months of the birth of the child. It also appeared that pros-
ecutrix had had confidential relations with many men to whom
she had permitted unbecoming familiarities, and had conducted
herself in a manner indicative of great laxity of moral obligation.
Held, on the whole case, that as the evidence was strongly against
the probability of the alleged promise to marry, and against the
purity of character of the prosecutrix, a new trial must be granted.
Ib.
1. The court has discretionary power, in a proper case, to suspend
its sentence, and jurisdiction is not lost thereby, People v.
Graves,
2. Accordingly, where the prisoner pleaded guilty to an indictment
for assault with a deadly weapon, and sentence was suspended
during good behavior, and he was allowed to depart without
day or recognizance for his future appearance, and some years
thereafter, an indictment for rape being found against him, he was
aken before the court, presided over by the successor in office of
the trial judge, and by him sentenced to imprisonment upon the
first indictment, -Held, that such sentence was properly pro-
nounced, and that the court had not lost jurisdiction of the pris-
oner or of the case.
3. The direction of Co. Crim. Proc. § 962, that criminal actions and
proceedings, commenced before the passage of that Code must be
conducted in the same manner as if that Code had not been passed,
refers to the procedure in criminal courts, not to their organiza-
tion. Sentence need not be pronounced by the judge before whom
the trial was had. People v. Bork, 56; People ex rel. Bork v. Gil-
bert,
177
4. A sentence imposed by a court composed of three persons sitting as
judges, and participating in the proceedings, when by law but one
of them was qualified to sit or act in rendering the judgment, is
void. lb.
5. The judicial power can only be exercised according to law, and an
attempt by an unauthorized tribunal to render judgment involving
life, liberty, or property, is a mere nullity. I.
6. L. 1863, ch. 226, giving an appellate court power, where it appears
that the conviction has been regular, to remit the record to the
court in which the conviction was had, to pass sentence as the
appellate court shall direct, was not repealed, at least as to cases
then pending, by the passage of the Code of Criminal Procedure,
and it continued in force as a rule of procedure. Ib.
7. The statute was not repealed by a mere change from certiorari to
appeal in the mode of bringing up the case for review. Ib.
8. Under the provisions of that law that the court to which the record
is remitted is to pass such sentence as to the appellate court shall
direct, the appellate court does direct sentence when it points out
the law providing the punishment, and directs the court below to
sentence thereunder. 1b.
9. When a prisoner pleads guilty no conviction is necessary; there is
nothing for the court to do but to pronounce sentence. People
ex rel. Evans v. McEwan,
10. A prisoner in custody under a void sentence upon a valid judg-
ment of conviction should not be discharged on habeas corpus, but
should be remanded to be sentenced according to law. People
ex rel. Devoe v. Kelly,
SPECIAL PROCEEDINGS.
See APPEAL, 8.
SPECIAL SESSIONS.
See COURTS.
STATUTE OF LIMITATIONS.
See LIMITATION OF ACTIONS.
See CONSTITUTIONAL LAW; SECOND OFFENSE.
SUMMING UP.
TENEMENT HOUSES.
See CIGAR MAKING; CONSTITUTIONAL LAW.
THREATS.
1. After the case had been submitted and the jury had retired to their
room, a written communication was received from them by the
Recorder, to which he sent a written reply, the nature of which
said correspondence did not appear in the appeal book, nor was
there anything to show that it concerned defendant's case or
worked detriment to him. A motion in arrest of judgment on this
ground was made and denied. Held, on appeal, that the motion not
being made upon the grounds specified in Code Crim. Proc. § 467,
in regard to arrest of judgment, must be considered an applica-
tion for a new trial on affidavits; that as it could not be enter-
tained as such an application, since it was not brought within
any of the provisions of § 465, therefore, the alleged error was not
before the court for review. Further held, that the proper prac-
tice in such a case, is to make a statement of the facts as a part of
the case and exceptions proposed, and thus furnish an opportunity
to the court to make an explanation disclosing the character of
the correspondence, which if it relates to the trial will properly
form a part of the record. It seems, that otherwise, the presump-
tion will be that there was no violation of duty on the part of the
court. People v. Kelly,
2. The time which counsel are to occupy in presenting a case to the
consideration of a jury rests to a great extent in the sound discre-
tion of the court, to be regulated the same as any other proceed-
ing during the progress of the case. Held, in this case, that de-
fendant was properly limited to half-an-hour in summing up, and
the fact that the district attorney was allowed to exceed by five
minutes, the time allotted to him, viz: twenty-five minutes, no
objection having been made thereto at the expiration of said limit,
cannot be taken advantage of by defendant on appeal. 16.
3. Where the inferences to be drawn from the testimony are not clear
and uncontrovertible, and men of ordinary judgment might differ
as to its significance, it is the exclusive province of the jury to
pass upon the questions involved. People v. Conroy,
Trial of several indictments should not be protracted one after another,
through term of years. See People v. Smith,
See JUDGE'S CHARGE; GRAND JURY; PETIT JURY.
VAGRANTS.
See CHILDREN.
VERDICT.
A general verdict of guilty under the Peculation Act, is not equivalent to
a special finding of the value of the property taken as stated in the
indictment. Sec People v. Bork, 56; People ex rel. Bork v. Gil-
bert,
1. It is not necessary that in a warrant of commitment, the crime of
which the prisoner was convicted, should be called by its techni-
cal name, provided the description of the act which constitutes
the offense is clear and precise, and leaves no doubt of its exact
character. Therefore a warrant of commitment which shows a
conviction of "assault and battery" is a sufficient statement of a
conviction of an assault in the third degree. Matter of Gray, 302
2. A prisoner who has been properly and legally sentenced cannot be
released because there is an imperfection in what is commonly
called the mittimus. People ex rel. Evans v. McEwan,
307
3. A prisoner is held in custody upon the judgment of the court, not
upon the mittimus. Ib.
4. The decision in People ex rel. Trainor v. Baker, 89 N. Y. 460, applies
to courts not of record. 1b.
5. A defendant imprisoned under a commitment which shows on its
face that it was issued to enforce a judgment which the court
under no circumstances could pronounce, will not be forced to
appeal, but will be released on habeas corpus. People ex rel. Knowl-
ton v. Sadler,
Right to ask disparaging questions, to attack credibility of witness.
People v. Irving, 47, 171; People v. Hooghkerk, 204; People v. Burns,
415; People v. Eckert,
Accomplice, what corroboration of, necessary. See People v. Hooghkerk,
204; People v. Ryland,
Corroboration of single witness as to perjury necessary; what sufficient.
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