Dalrymply v. Hall, 16 Ch. Div. 717, quoted a headnote from that case that, in the absence of context, showing a contrary intention, the word "unmarried" must be construed according to its original and primary meaning as "never having been married," and therefore that the gift to the children of B. did not take effect; he being a widower. That case, however, is equally an authority for holding that, where the context does show a different intention, the word "unmarried" should not be defined as "never having been married."

[9] It devolves upon the state to show that the prosecutrix is an unmarried female, not necessarily by direct evidence, but, like any other fact, it may be shown by facts and circumstances. State v. Reed, 153 Mo. 451, 55 S. W. 74.

[10] Just as character is not founded on a presumption of law (People v. Nelson, 153 N. Y. 90, 97, 46 N. E. 1040, 1042 [60 Am. St. Rep. 592]), so by operation of law a woman cannot be deemed "unmarried" within the meaning of this penal statute when in fact she may have a husband living. It was not intended to treat a presumptively unmarried woman as being within a state of constructive and presumptive widowhood. It must be absolute and defined. While she may legally consent to and actually marry where in a proper case the presumption of death of her husband operates, still the marriage at best is voidable (Domestic Relations Law [Consol. Laws 1909, c. 14] § 7, subd. 5), and on the return of her former husband, or proof that he is still living, the second marriage may be annulled. Let me assume that in such a case the defendant were to be held and convicted of seduction under promise to marry, and then complainant's husband was found to be still alive; we would have the anomalous condition of a presumption of law working an injustice. No defendant should be convicted or even held on a case, one of the essential elements of which is not actually proven, but which under a presumption of the civil law is presumed to exist at the time of the alleged seduction.

The Supreme Court of Missouri, in State v. Wheeler, 108 Mo. 658, 664, 18 S. W. 924, 926, laid down this rule:

"We know of no presumption that a woman is unmarried in the absence of any evidence whatever on the point."

In Zabriskie v. State, 43 N. J. Law, 640, 642 (39 Am. Rep. 610), the court said, "The law will not presume that the female is single,' and it even held that chastity will not be presumed as a conclusion of law; that presumptions of law are used as mere aids to the defense, and not as instruments of assault. People v. Krusick, 93 Cal. 74, 78, 28 Pac. 794.

The defendant in the Krusick Case was convicted of seducing an unmarried female of previous chaste character under a promise of marriage. The trial court charged the jury:

"You have no right to infer or presume that the prosecuting witness was an unmarried female. It devolved upon the prosecution to establish that fact, * and, if the prosecution has failed to do so, it is your duty to acquit the defendant."

There was no proof that the witness was unmarried. On appeal the court said that reference to her as "girl," "young lady," and "Miss" does not furnish enough evidence of the fact, and adds:

"The jury were not authorized to found an inference thereon that she was unmarried, nor can the defendant be convicted upon a mere inference of this fact, any more than upon an inference of the other facts which are necessary to constitute a crime (State v. Carr, 60 Iowa, 453 [15 N. W. 271]); * ** * and the fact that she was unmarried is an essential element of the crime, and, until it is shown, the presumption of innocence prevails in favor of the defendant."

In Matter of Wagener, 143 App. Div. 286, 287, 128 N. Y. Supp. 164, 165, Judge Miller writes:

"The general rule that an absentee who has not been heard of for seven years may be presumed to be dead at the expiration of the seven years, for the purpose of distributing an estate, is well settled. See Jackson v. Claw, 18 Johns. 347; Eagle v. Emmet, 4 Bradf. Sur. 117; Matter of Sullivan, 51 Hun, 378 [4 N. Y. Supp. 59]; Barson v. Mulligan, 191 N. Y. 306, 324 [84 N. E. 75, 16 L. R. A. (N. S.) 151]. Of course, the rule is to be applied with caution (Matter of Board of Education of New York, 173 N. Y. 321, 326 [66 N. E. 11]), and it has limitations. The rule and its limitations are stated, with supporting authorities, in Lawson's Presumptive Evidence, p. 251 et seq. Circumstances may justify a finding of death before, or they may be such as to give rise to no presumption either at or after, the expiration of seven years. Each case must necessarily depend upon its own facts. When the failure of the absentee to communicate with his friends is satisfactorily ac counted for on some other hypothesis than that of death, or when no inquiry has been directed to the place where he has last known to be as in Dunn v. Travis, 56 App. Div. 317 [67 N. Y. Supp. 743], no presumption arises. But it is to be borne in mind that the rule was adopted by analogy to the statutes with reference to bigamy and to leases for life, as a rule of necessity to fix the rights of the living with relation to the absent, and that it is necessarily an artificial rule, depending for its application upon the known facts regardless of what the actual fact may be. Rights are not to be held in abeyance indefinitely on account of absence of a person of whom no trace can be found. He may not be dead, but he will be presumed to be dead for the purpose of fixing the rights of those known to be living. In Davie v Briggs, 97 U, S. 633 [24 L. Ed. 10861, Mr. Justice Harlan quotes the following rule from Stephen's Law of Evidence, c. 14, art. 99: * # A per

son shown not to have been heard of for seven years by those (if any) who, if he had been alive, would naturally have heard of him, is presumed to be dead, unless the circumstances of the case are such as to account for his not being heard of without assuming his death.'"

The common-law presumption of death after a lapse of years is not sufficient in a criminal prosecution. There are no such presumptions under the criminal law, except the presumption of innocence in all stages of criminal proceedings, and those which establish rules of evidence that may be rebutted. The criminal courts should not presume the death of another in cases of this class, nor should any conviction for crime be had on mere suspicion or on a presumption of the existence of a fact for which there is no basis; and, if the evidence is dubious, it should be resolved in the defendant's favor.

On an application for letters of administration upon the estate of an alleged decedent, Surrogate McCauley in writing in Matter of Jones, 70 Misc. Rep. 154, 157, 128 N. Y. Supp. 477, 479, said:

"It is quite impossible to give any standard by which to measure the sufficiency of circumstantial evidence of death; but mere information and belief, founded on nothing, is, of course, not proof in any legal sense."

Mere disappearance does not give rise to the presumption of death (Matter of Matthews, 75 Misc. Rep. 449, 136 N. Y. Supp. 636) and where, as in this case, the husband of the prosecutrix left supposedly with another woman, it can hardly be expected that he would make his whereabouts known to any one (Town of Van Buren v. City of Syracuse, 72 Misc. Rep. 463, 131 N. Y. Supp. 345). It is improbable that he, even if alive, would or could have been heard of at, or could or would have communicated with, his residence, home, or domicile. Lawson's Law of Presumptive Evidence, rule 53, p. 294.

The death of the husband of the prosecutrix has not been proven, nor has any evidence been adduced from which it can be reasonably inferred. Under the circumstances of this case, I cannot presume that the prosecutrix is an unmarried woman within the purview of the statute under consideration.

[11] The promise to marry must be absolute. A conditional promise has been held to be insufficient. People v. Van Alstyne, 144 N. Y. 361, 39 N. E. 343; Armstrong v. People, 70 N. Y. 38.

The persuasion which the prosecutrix testified that the defendant used to overcome her natural scruples led to the fixing of the date of promised marriage. She says that the defendant would marry her "when" his daughter Hilly married. The district attorney contends that this is not a promise conditional in character, although the prosecutrix admitted in her cross-examination that no such marriage has ever taken place. The people claim that this is a mere limitation applicable only to the time when the marriage should be performed.

It is true that it is not essential that the promise should be to marry the prosecutrix immediately or at any definitely fixed time, and that a promise to marry in the future is sufficient; but, nevertheless, where the parties concerned have it understood that such marriage is dependent upon a contingency which may never happen, then, in my opinion, it seems that the promise is not absolute and the requirements of the statute have not been met.

The court, writing in People v. Duryea, 81 Hun, 390, 392, 30 N. Y. Supp. 877, 878, says:

"It is impossible to have seduction under a promise to marry when the only promise at the time of the seduction is one depending upon an event that may never occur."

The people failing to make out a prima facie case, the complaint must be dismissed, and the defendant is ordered discharged.

(79 Misc. Rep. 442.)

PEOPLE v. FORBES et al.

(Erie County Court. February 26, 1913.)

JURY (§ 31*)-RIGHT TO JURY TRIAL-COURTS IN WHICH TRIAL BY JURY IS REQUIRED.

Const. art. 1, § 2, and article 6, §§ 18, 23, guarantee trial by jury in all cases where it has been heretofore permitted, and prohibit giving inferior courts greater jurisdiction than is conferred on County Courts. Code Cr. Proc. § 717, provides that courts of special sessions shall have no power to impose a fine of more than $50. Laws 1909, c. 570, § 70, as amended by Laws 1910, c. 228, permits the City Court of Buffalo, which is a court of general sessions, to impose without trial by jury any sentence which the County Court of Erie can impose. Held, that section 70 is not unconstitutional because permitting as great a sentence to be imposed without a jury as is imposed by the County Court on a jury trial, since the right to a jury trial in courts of special sessions did not exist before the adoption of the Constitution.

[Ed. Note. For other cases, see Jury, Cent. Dig. §§ 204-219; Dec. Dig. § 31.*]

Appeal from City Court of Buffalo.

George Forbes and another were convicted of assault, and they appeal. Affirmed.

Harlow C. Curtiss, of Buffalo, for appellants.

Wesley C. Dudley and Clifford McLaughlin, both of Buffalo, for the People.

TAYLOR, J. The defendants, after a joint trial, have been convicted in the City Court of Buffalo of assault in the third degree. Under this conviction the defendant Forbes was sentenced to the Erie county penitentiary for a term of 60 days and to pay a fine of $100, and the defendant Wright was sentenced to the Erie county penitentiary for a term of 90 days and to pay a fine of $250. The defendants appeal from said judgment, claiming that it was against the weight of the evidence, and that the City Court was without jurisdiction to impose a fine of more than $50, and that therefore the judgment is null and void, and that the defendants should be discharged.

The appellants contend that section 70 of chapter 570 of the Laws of 1909, as amended by chapter 228 of the Laws of 1910 of the state of New York, which permits the City Court of Buffalo, a court not of record, to impose any sentence which the County Court of Erie County can impose, is unconstitutional. In support of their contention the appellants rely upon section 2 of article 1, and sections 18 and 23 of article 6, of the Constitution of the state of New York, and upon section 717 of our Code of Criminal Procedure. Said sections of the Constitution provide, in substance, that trial by jury in all cases in which it has been heretofore used shall remain inviolate forever; that our Legislature shall not hereafter confer upon any inferior or local court of its creation any greater jurisdiction than is conferred upon county courts; and that courts of special sessions shall have jurisdiction of offenses of the grade of misdemeanors as may be prescribed by law. Said section 717 of the Criminal Code states in part that courts *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

of special sessions shall have no power to impose a fine of more than $50. The appellants' contention is that inasmuch as the above-mentioned portion of our statutes of 1910 permits the City Court of Buffalo, without the right to a trial by a common-law jury of 12 men, to impose as great a sentence as can be imposed by the County Court in which the right to a trial by a common-law jury after indictment is guaranteed, that such statute confers upon the City Court greater powers than have the County Court, and that therefore said act is unconstitutional. The answer to this contention, it seems to me, is not hard to find. The right to a trial by a common-law jury of 12 men in courts of special sessions did not exist before our Constitution went into effect. People v. Justices, etc., 74 N. Y. 406.

It follows that section 2 of article 1 of the Constitution, which provides that the right to trial by jury shall remain inviolate forever in all cases in which it has been heretofore used, creates no right which did not previously exist, and therefore does not grant to accused persons the right to a trial by a common-law jury in courts of special sessions since the Constitution went into effect. People v. Dutcher, 83 N. Y. 240.

Said section 717 of the Code of Criminal Procedure, it must be noted, is not a constitutional provision, but a mere act of the Legislature specifying the power of courts of special sessions in the matter of sentencing. The said act of 1910 simply amplifies such power in one of said courts, but not to an extent greater than that enjoyed by the County Court; and since the legislative act is not ex post facto as to the case at bar, I cannot see why it is not constitutional, for, while it may result in depriving a citizen of liberty, no one can successfully argue that it is not "due process of law." No constitutional or other vested right is taken away.

I believe further comment to be unnecessary. To recapitulate: The Legislature in passing this act of 1910 did not act in contravention of the state Constitution by conferring on the City Court of Buffalo "any greater jurisdiction than that conferred upon county courts" (article 6, §18, New York Constitution), if my understanding of the meaning of the word "jurisdiction" is correct; the Legislature did not take away any existing right to a trial by common-law jury, for no such right ever existed in courts of special sessions as to assault in the third degree; courts of special sessions have exclusive jurisdiction over assault, third degree, with the exception of the removal provision contained in section 57, C. C. Proc., and since this removal is not a matter of right, but discretionary with the superior judge or justice, there is not, and never was, any vested right to be tried for assault, third degree, by a common-law jury; the said act of 1910 is not ex post facto, and it is "due process of law." The conclusion I reach has support in the opinion handed down in Re Hallenbeck, 65 How. Prac. 401. This opinion holds that, in spite of the provisions of section 717 of the Code of Criminal Procedure, the Court of Special Sessions of the City of Albany, under a special statute, has a right to fine to the extent of $500 one who has committed the crime of petit larceny. While the testimony upon which the conviction is based is not of the most convincing nature, I find that the judgment is not sufficiently 140 N.Y.S.-30