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FIRST DEPARTMENT, DECEMBER TERM, 1874.

claim against the defendants, but was right in declaring them responsible for the quota paid the county, and out of which it was required to pay the sum due to the State.

It is not necessary to discuss the effect of the cases cited by the defendant's counsel. The statute of 1863* presents an entirely different question from any of those disposed of in the cases mentioned, because the effect of it, as shown, is to provide a fund for the payment of the taxes illegally levied and collected. The court below was doubtless controlled by the case of Bank of the Commonwealth v. The Mayor,† in which it was held, that the tax imposed having been annulled and declared invalid, the city was responsible for the portion received by it, but not for the quota paid to the county. The statute of 1863 was not referred to on the argument of this appeal, and it may be that the attention of the presiding justice was not called to it. Whether the defendants would be responsible for the quota paid the city, in the absence of that statute, it is not necessary to declare. If this were an action against the city to recover such sum, this court might sustain it upon the theory that the city's indemnity was provided for by the act of 1863, and leave the city to secure it. However that may be, it is clear that the object of that act was to provide a fund to be applied to the payment of claims founded upon the illegal levy and collection of the taxes of 1862, a levy acknowledged by the legislature to have been improper. It was money paid and received by the county for the benefit of the owners of such demands. Neither the city nor the county had any claim upon it, for aught that appears. Neither had refunded any of the tax received, and both had been paid in full. The liability of the defendants in an action like this, seems to be settled by the case of Newman v. Supervisors of Livingston County, & assuming them to have received the money of the plaintiff wrongfully. It is true that they paid out certain portions of it, but they were invested with power, and it became their duty, to reimburse themselves, and, in that way, to prepare for the demand. This authority is equivalent to a receipt of the money, and the fund should be applied, in the first instance, to the payment of the claims for which it was intended. In the simple forms of procedure created by our Code, circuity of action § 45 N. Y., 676.

*

Supra.

43 N. Y., 184.

+ Supra.

FIRST DEPARTMENT, DECEMBER TERM, 1874.

should be avoided, and there seems to be good reasons why it should not be in this case. The judgment should be reversed and

new trial ordered.

Motion for new trial denied, and judgment ordered for plaintiff on the verdict, with costs.

THOMAS LENAHAN, PLAINTIFF IN ERROR, V. THE PEOPLE, DEFENDANTS IN ERROR.

When jury cannot act upon their own knowledge of facts not proved in the case— 3 R. S. (5th ed.), 944, § 38 — indictment under.

The prisoner was convicted of an assault with intent to kill. The offense was committed about nine o'clock in the evening of the 5th of August, 1874, on Fifth avenue, between Fifty-third and Fifty-fourth streets, in the city of New York. Testimony was given on behalf of the prosecution, tending to show that the street, at that point, was generally deserted at that time of night, and that the prisoner was found standing near the place where the crime was committed very near the time of its perpetration.

The court charged the jury that they had a right, of their own knowledge, to take notice of the circumstance that at that time, the fifth of August, no part of the city, was more likely to be deserted, even as early in the night as nine o'clock, than that part of the avenue. Held, that this was error. The fact referred to was not one which could be regarded as one of general notoriety, and for that reason proof was necessary to establish its existence.

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The statute under which the plaintiff was convicted, provides that "every person who shall be convicted of an assault and battery upon another, by means of any deadly weapon, or by such other means and force as was likely to produce death, with intent to kill," shall be punished as therein stated. Held, that it was not necessary to allege in the indictment, or prove upon the trial, that the assault was " with a deadly weapon."

Facts of which courts and juries may take judicial notice stated. (DAVIS, P. J.)

WRIT of error to the Court of General Sessions of the city and county of New York, to review the conviction of the plaintiff in error of an assault with intent to kill, under the provisions of 3 Revised Statutes (5th ed.), 944, section 38.

Wm. F. Howe, for the plaintiff in error. The indictment should have alleged that the assault was with "a deadly weapon."

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FIRST DEPARTMENT, DECEMBER TERM, 1874.

(O'Leary v. People, 4 Parker, 187; People v. Davis, 4 id., 61; People v. Shaw, 1 id., 327; 2 Wharton's, § 1274.)

B. K. Phelps, district attorney, for the defendants in error.

DAVIS, P. J.:

The plaintiff in error was convicted on the third count of the indictment. It is claimed that the conviction cannot be sustained, because that count contains no averment that the assault was "with a deadly weapon." The count charges that the prisoner feloniously made an assault upon one Horace Galpen, and him, the said Horace Galpen, with a certain piece of lead, which the said Thomas Lenahan in his right hand then and there had and held, willfully and feloniously, did beat, strike, cut and wound, the same being such means as was likely to produce the death of him, the said Horace Galpen, with intent him, the said Horace Galpen, then and there feloniously and willfully to kill.

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The statute upon which the count of the indictment is drawn, is by no means limited to assaults and batteries with intent to kill, by means of any deadly weapon. Its language, so far as it bears upon this case, is: "Every person who shall be convicted * of an assault and battery upon another, by means of any deadly weapon, or by such other means or force as was likely to produce death, with intent to kill," shall be punished, etc. An assault and battery by means of any deadly weapon, with intent to kill, is only one of the alternatives of the provision; the other is an assault and battery, with like intent, by such means and force as was likely to produce death. And the latter offense is accurately and particularly set forth in the count. We think there is no merit in the point raised by counsel.

A very large number of objections and exceptions were made and taken on the trial, most of which were altogether frivolous. Indeed, if we regard the error book as containing a fair photograph of the proceedings upon the trial, it is painfully apparent that the conduct of the prisoner's counsel in presenting his objections and taking exceptions, was so discourteous and indecorous toward the court as to have deserved severe censure. We do not regard it important to consider all the exceptions argued

FIRST DEPARTMENT, DECEMBER TERM, 1874.

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before us, because our conclusion upon one of them renders it necessary to reverse the judgment, and order a new trial. The crime for which the plaintiff in error is convicted, was committed at about nine o'clock of the evening of the fifth day of August last, at a point on Fifth avenue near Fifty-fourth street. The blow was struck by a person who stealthily approached Mr. Galpen from behind. Mr. Galpen was able to give only a general description of the person, and identify the prisoner with him, by saying that the person he saw "was about the height and build and general appearance of the prisoner and had on a dark straw hat, of a rather peculiar shape, and also a dark coat." No witness saw the blow struck, but very strong circumstantial evidence was given on the part of the prosecution to show that the prisoner was the guilty person. One of the circumstances was the deserted condition of the avenue at the time, and that nobody but the prisoner was seen near the spot where the occurrence happened. The prisoner swore, in substance, that he did not strike the blow; that he had come to Fifty-first street to meet a female, according to appointment, and there saw a woman and several men having some difficulty; that, upon the outcries of the woman, a police officer came, and that fearing he would be clubbed, he ran up Fifth avenue toward Fifty-fourth street, and, while running, heard Mr. Galpen's cry of murder, and saw him running across the avenue; that he kept on to the place where Galpen was when struck, and there saw and conversed with the peoples' witnesses (who had before stated their conversation with him), and that he ran away from that point, down Fifty-fourth street, fearing that he might be arrested as one of the persons who had caused the outcries of the woman on Fifty-first street. The prisoner's counsel urged the theory upon the jury, that the blow was struck by some person who had been concealed in an area, and suddenly had sprung out upon Galpen, and then fled or concealed himself as the prisoner was approaching from Fifty-first street. In view of this testimony and theory on the part of the prisoner, it is quite apparent that the condition of Fifth avenue, as to whether it was deserted at the time, or whether persons were passing along it in that vicinity, became a question of some materiality; and on this subject the learned judge, in the course of his

FIRST DEPARTMENT, DECEMBER TERM, 1874.

charge said: "And here let me remind you that the complainant testified (and that you may consider an important piece of evidence), that when he was walking along and heard this stealthy step behind him, the street appeared to be deserted. You will recollect the time; it was on the fifth of August; you wont forget the place — it was the Fifth avenue; you have a right, of your own knowledge, to take notice of the circumstance that at that time, the fifth of August, no part of the city was probably more likely to be deserted, even as early in the night as nine o'clock, than that part of the avenue." To the last sentence of this portion of the charge, the prisoner's counsel excepted. We think the exception was well taken. The condition of the street, as to whether deserted or not, at the time and place described, was a fact to be proved, like other circumstances in the case; and if the proof on that subject was insufficient or unsatisfactory, the prisoner was entitled to any advantage that might grow out of that fact. The evidence could not be helped out by the jury, by taking notice from their own knowledge, that as early as nine o'clock of the night of the fifth of August, that part of the Fifth avenue was more likely to be deserted than any other part of the city. It is not important whether or not we think that this charge probably had no material influence on the minds of the jury. We cannot, with certainty, be legally assured that it did not, and therefore we cannot treat it as having worked no legal prejudice to the prisoner. Possibly the jury may have given less consideration to the prisoner's own statement, by casting this notice from their own knowledge into the scale against it. There are many things of which courts and juries may take judicial notice, without evidence to prove their existence, extent or validity: the general statutes, the rules of common law and the decisions of the superior courts; * the jurisdiction and sovereignty exercised de facto by their own government; † the local divisions of their own county, and the relative positions of such divisions; who are public officers, elected or appointed under general statutes; what rivers are public highways; § the common and ordi

* Browne v. Sconeld, 8 Barb., 239; People v. Herkimer, 4 Cowen, 345. + People v. Breese, 7 Cowen, 429;

Gleason, 7 Barb., 472.

Chapman v. Wilber, 6 Hill, 475; Bronson v.

People v. Nevins, 1 Hill, 154.

§ Browne v. Scofield, 8 Barb., 239.

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