3. The board of supervisors has no power, in hostility to the county
clerk, to have indexes made of the records in the clerk's office. Id.
COVENANT — Of seizin by husband and wife — when wife not bound by.
CRIMINAL LAW - Assault with intent to kill — when jury cannot act upon
their own knowledge of facts not proved.] 1. 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 noto-
riety, and for that reason proof was necessary to establish its existence.
Facts of which courts and juries may take judicial notice stated.
(DAVIS, P. J.) LENAHAN . PEOPLE..
Assault with intent to kill that assault was with a "deadly weapon"
need not be alleged or proved.] The statute under which the plaintiff was con-
victed, 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." Id.
3. Burglary - evidence.] Upon the trial of the plaintiff in error for burg-
lary, evidence was received showing the disappearance of certain cigars, which
were not mentioned in the indictment, with the articles which were therein
mentioned. Held, that the evidence was properly admitted. The theft of
the cigars constituted a part of the transaction on which the indictment was
found, and was admissible as a circumstance showing its nature and extent.
A box containing burglars' tools, found in the office of the Adams Express
Co., at Boston, shortly after the burglary, was produced and identified at
the trial. It was proved that it was made for the prisoner; that it was taken
to his residence and sent away by an express wagon; that it was marked with
the name of Foster (his name); and that he, with another person, was at
the express office when it was found. Held, that the evidence was sufficient
to connect the prisoner with the box, and that an objection to its reception
in evidence, on the ground that such connection was not sufficiently estab-
lished, was not sustainable. FOSTER v. PEOPLE....
4. False pretenses.] Where, in an indictment for obtaining money by
false pretenses, several representations are set out, it is sufficient to show
that any one of such representations was false, and fraudulently made,
provided it be proved to the satisfaction of the jury, that such representation
was a substantial inducement to the parting with the money.
5. — False pretenses - Scienter how may be proved.] The plaintiff in
error was indicted, jointly with two others, for obtaining money by false
pretenses. Upon the trial the prosecution was allowed to show that the
plaintiff in error, with one of his coindictees, had attempted to obtain
money from another woman, by means of the same false representa-
tions which were set out in the indictment. Held, that this evidence was
admissible to show the intent of the accused in the particular offense,
and also as tending to show the known falsity of the pretext upon which
the money was obtained. Id.
6. When evidence of previous offenses may be given.] Evidence of pre-
vious offenses of the accused may be given, in order to show the intent with
which the particular transaction was committed, although it may inci-
dentally prejudice his character in the minds of the jury. Id.
7. — Robbery in first degree-witness' description of robbery by acts and
gestures not presented by bill of exceptions.] Upon the trial of the plaintiff
in error for robbery in the first degree, the complainant described the alleged
robbery not only by words, but by acts, exhibiting to the jury the manner
and mode of its commission. The judge charged that the evidence of the
complainant was sufficient, if believed by the jury, to justify the conviction
of the prisoner. Upon a writ of error, held, that, as the bill of exceptions did
not present a portion of the evidence, viz., the acts exhibited to the jury,
the court must assume that such evidence was sufficient to authorize the
charge. MAHONEY v. PEOPLE
Robbery in first degree—what degree of violence necessary to constitute.]
As the complainant was entering a horse-car in the city of New York, an
accomplice of the prisoner crowded him against the door, whilst the prisoner
threw his arms around the complainant's neck, pulled him toward him, and
removed a wallet from his pocket. Held, that the prisoner was properly con-
victed of robbery in the first degree. Id.
Robbery-evidence showing less offense - charge as to when errone-
ous.] The plaintiff in error was tried and convicted upon an indictment for
robbery in the first degree. Upon the trial testimony was given by the pris-
oner, which, if believed, would have acquitted him of robbery, but would
have justified a conviction for a less offense. The prisoner's counsel requested
the court to charge the jury that they could render a verdict of guilty of lar-
ceny from the person, or of an assault and battery. The court charged: "It
is in your power to find this man guilty of arson in setting fire to the City
Hall. You are only to find such a verdict as the facts that have been proved
before you will justify." Held, that as this was in effect a charge that the
jury could not legally find him guilty of the specified offenses, it was errone-
ous, and that a new trial should be ordered. MURPHY v. PEOPLE
10. Arson-burning of several buildings alleged in one count as one
offense.] Where a house was set on fire by the plaintiff in error, and by the
fire thus started by him thirty-five houses were destroyed, held, that he was
properly indicted for one offense, and that, if the destruction of every house
amounted to the same degree of arson, the indictment need contain but one
count, charging the burning of the thirty-five houses.
11.- -Arson -error for duplicity — when cured by waiver of party and charge.]
The counsel for the plaintiff in error insisted that the indictment was void
for duplicity, upon the ground that it did not state that there was a human
being in each house, but in one only, and therefore joined in one count the
offenses of arson in the first, and in the third degree. Upon the trial the
people abandoned all claim to convict, except as to one specific house, and
the judge charged the jury, that they must find the prisoner guilty of setting
fire to that house or acquit him. Held, that the error in the indictment, if
any, was cured by the waiver on the part of the people and the charge of the
judge. Id.
12. Arson when indictment sufficiently alleges presence of human being
in house.] The indictment charged the prisoner with setting fire to the dwell-
ing-houses of certain persons, naming them, and of divers other persons to
the jurors unknown, "there being then and there within the said dwelling-
houses some human being." Held, that the indictment sufficiently alleged
the presence of a human being in each house. Id.
Arson-Evidence.] A few hours before the commencement of
the fire in question, a hay barn, situated in the same village, was burned.
Upon the trial evidence was received, against the objection and exception of
the prisoner, showing that he was seen in the vicinity of the barn shortly
before and after it was burned. Held, that the evidence was properly
admittted. Id.
14. Arson.] The occupant of the house, for the burning of which the
plaintiff in error was convicted, was aroused by the alarm before the fire had
reached her house; instead of leaving at once she remained a few moments
to collect her things, when the fire caught her house. Held, that the prisoner
was properly convicted of arson in the first degree. Id.
15. Forgery - Account against county for services, is subject of — 2 R. S.,
673, § 33.] The plaintiff in error was indicted for forgery in the third degree;
the indictment alleging that a document, set forth therein - purporting to be
a formal statement of an account for services rendered by a constable to the
county of Saratoga, in which the items were set forth in detail, with an affi-
davit of the claimant as required by law was falsely made, forged and
counterfeited by him, with intent to defraud the said county. Held, that a
demurrer to the indictment was properly overruled; that the instrument set
forth in the indictment was the subject of forgery within 2 Revised Statutes,
673, section 33. ROSEKRANS V. PEOPLE....
16. Forgery-Indictment — when not bad for duplicity.] The plaintiff in
error also demurred to each of the counts for duplicity, insisting that the
bill or account, the signature to the affidavit, and the signature to the jurat or
certificate, were different instruments within the meaning of the statute, and
that the forgery of each of them was a distinct offense. Held, that the
demurrer was properly overruled; that the account and signatures were not
separate instruments, as they were all essential to the completion of the
account before it could be properly presented to the board of supervisors.
In order to render a count void for duplicity, the two offenses must be
described in adequate terms; otherwise the additional allegations will be
regarded as surplusage. Id.
17. Forgery - Indictment — when sufficient.] An indictment which
alleges that the defendant falsely made, forged and counterfeited an instru-
ment, within the statute, with intent to defraud, setting forth the instrument
in haec verba, is sufficient. Id.
18. Murder-Declarations made in extremis—when inadmissible.] Upon
the trial of the plaintiff in error, on an indictment charging him with the
murder of his wife, witnesses were allowed to testify, against his objection,
to declarations of his wife, made in extremis, to the effect that he and another
person were the cause of her suffering; that she expected that he and this
person caused her death. Held, that the declarations were not statements
of facts, but were simply the opinions and conjectures of the deceased, and
that they were improperly received in evidence. SHAW v. PEOPLE.... ... 272
19.
Murder-Declarations of deceased - when their exclusion is error.]
The theory of the prosecution was, that the accused had poisoned his wife
and three children, in order that he might live with one Sarah Briggs; the
theory of the defense was, that the poison was administered by the wife in
a fit of jealousy, caused by suspicions of improper intimacy between the accused
and Sarah Briggs. The defense offered to prove declarations of the deceased,
that she had poison and knew how to use it," and that rather "than Mrs.
Briggs should have her children, she would put them all under the sod,"
which declarations were excluded by the court. Held, that their exclusion
was error. Id.
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Oyer and Terminer — absence of one of the justices during portion of
the trial-effect of] Upon the commencement of the trial the court consisted
of the presiding justice, the county judge, and the justices of the peace. After
a portion of the evidence had been taken, the court adjourned from Satur-
day until Monday. On the assembling of the court on Monday, one of
the justices was absent, but on the following day he resumed his seat and
took part in all the subsequent proceedings. Held, that, as the justice who
was absent on Monday did not hear the evidence taken on that day, and as
the same was not read over to him, he was not qualified to take part in the
proceedings of the court; and that, as the court was therefore improperly
organized, a new trial should be granted. (Per HARDIN, J.) Id.
21. Assault with intent to do bodily harm Question by court of pris
oner - - when improper.] The plaintiff in error was tried and convicted of
an assault, with intent to do bodily harm with a pistol. The defense was
that the act was committed in self defense, the complainant being the assail-
ing party.
CRIMINAL LAW - Continued.
Upon his examination, the prisoner described a movement made by the
complainant during the collision, from which he thought the latter intended
to draw a pistol. The recorder asked him, if he could tell why the complain-
ant, who had the best of the fight, should put his hand in his pocket, or what
occasion he had to draw a pistol. Held, that the question was improper, as
calling for the opinion of the witness, and not a statement of fact.
22. Self defense when weapon may be used in.] To authorize a person
to use a weapon in self defense, it is sufficient to show a reasonable ground
for apprehending a design to take his life, or to do him some great bodily
harm, and that the danger was imminent that such design woukl be accom-
plished, although it might afterward turn out that such appearances were
false, and there was not in fact any such design, or any danger that it would
be accomplished. Id.
Protection of public authorities - duty of person assailed to seek.] A
party assailed may seek the protection of the authorities, but his failure so to
do, does not deprive him of the right to defend himself in the same manner,
to the same extent, and by the same means as if he had done so. Id.
statement of person arrested with accused when admissible
Misdemeanors-when two or more distinct offenses may be included in one
indictment and sentence pronounced for each — jurisdiction of Special Sessions of
New York of.
See PEOPLE EX REL. TWEED . LISCOMB.......
DAMAGES- Measure of, in action to recover for injuries to wagon.
Measure of damages sustained by laying out highway.
See PEOPLE v. ELDREDGE
See HIGGINS . NEWTOWN AND FLUSHING R. R. Co.....
Measure of when contract price is made measure of damages in implied
DEBTOR AND CREDITOR When debtor pays debt to creditor in person,
presumption is that he paid it properly and lawfully, and the burden is on assignee
of the debt to show that it was unlawfully paid after notice.
See HEERMANS. ELLSWORTH
DECISION - Not affected by reason assigned for.] A correct decision will not
be reversed because the reason upon which it is placed proves to be untenable.
STEVENS . CORN EXCHANGE BANK.
After expiration of twenty-one years it will not be reversed for technical
errors- - upon whom burden of showing error rests in such case.
See SIMPSON v. MCKAY...
DECREE - Surrogate's decree on final settlement of executor's accounts — what
it only determines - Decree of distribution—when and by whom action will lie
upon
when a nullity.
DEEDS - Records of, in county clerk's office are not county property, and the
clerk does not act as agent of county in keeping them.
Deed conveying personal property in trust-when revocable as a power of
DEFENSE Alternative defenses - Defense that note was drawn for too much
by mistake, or, if not, that it was usurious.
See LUSK v. CAMPBELL
DEMAND-Necessary before action to recover money fraudulently obtained and
paid to innocent third party.
See STEPHENS v. BOARD OF EDUCATION
In replevin- when must be alleged and proved—not alleged in complaint,
but proved at trial - insufficiency of complaint cannot be urged on appeal.
See TREAT v. HATHORN
DEMURRER — Judgment-roll — when and how may be amended.
See TRADESMEN'S NAT. BANK v. MCFEELY
DENIAL-Upon information and belief— not such denial as § 149 of Code
requires.
See POWERS v. ROME, ETC., R. R. Co.
DISORDERLY PERSON - Bond given by nature of, and liability upon.]
In this action, brought by the people upon a bond, given by the defendant in
pursuance of 2 Revised Statutes (5th ed.), 903, conditioned for the support of
his wife, the plaintiff was nonsuited on the ground that, although defendant
had neglected to support his wife, yet, as she had supported herself, and the
county had not been put to any expense therefor, the plaintiffs were not entitled
to recover. Held, that this was error. The bond required by the statute is
not a bond of indemnity to the town or county to repay such sums as either
may have advanced for the support of the family, but the amount named in
it is a penalty imposed for the neglect to support the wife.
DISTRICT ATTORNEY- When authorized to act as surrogate.
DIVORCE-Effect of, on interest of husband in realty, held as tenant of the
entirety with his wife, when sold on execution.
DOWER-Payment of its value in money by executor.] 1. Dower is recoverable
by action against the person in possession of the real estate of which the
deceased husband died seized. Mesne profits are not recoverable until the
widow recovers judgment for her dower. KYLE v. KYLE.....
An action will not lie for its value in money unless an express con-
tract be proved. Id.
ELECTION OF OFFICERS — Right of suffrage — whence derived.] 1. The
Constitution does not confer the right of suffrage, but recognizes it as
an existing right, and either itself declares the qualifications of voters, or
authorizes the legislature to provide for ascertaining them.
2. Power of legislature to regulate.] The legislature, by virtue of its
general legislative power, is authorized to designate the time and place
of holding elections, and the officers who shall conduct the same, and by
whom the results thereof shall be ascertained and determined. Laws upon
these subjects are not unconstitutional, unless they take away or unreason-
ably restrict the right of suffrage. Id.
3. Registry act — sec. 6, chap. 570, 1872— constitutionality of] Section
6 of chapter 570 of the Laws of 1872, providing that no vote shall be
received unless the name of the person offering to vote be on the register,
made as therein provided, is constitutional and valid. The validity of the act
is not affected by the fact that the right to vote is lost, not by any act of the
elector, but through the acts and omissions of the officers appointed to pre-
pare the register. Id.
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