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THE ALBANY LAW JOURNAL:

A WEEKLY RECORD OF THE LAW AND THE LAWYERS.

The Albany
Albany Law Journal,

.

The

who have been severely shocked by electricity say that the sensation is pleasant, or at least the victim almost instantly lapses into unconsciousness. The

punishment of shooting certainly would seem much ALBANY, JULY 6, 1889.

more cruel, and yet it has been pronounced constitutional. The object of this constitutional provi

sion was to provide against bodily torture or excesCURRENT TOPICS.

sive and disproportionate imprisonment. Burning,

breaking on the wheel, disemboweling, impaleHE

ment, racking, starving, and such punishments are cloquent plea” in behalf of the murderer, necessarily cruel. The report of the commissioners Kremmler, to set aside the conviction on the on the subject gave a long list of such punishments. ground that the punishment of death by electricity So far as men know, or probably ever can find out, is "cruel and unusual,” and therefore forbidden by there is nothing in the nature of torture or lingerthe Constitution. Eloquence is good in its way, ing in this punishment. It meets the keenest idea but courts do not adjudge statutes unconstitutional of speediness, and that includes absence of pain, by mere force of pleasing declamation. Every pre

Mr. Cockran argues that it is “degrading to a noble sumption is in favor of constitutionality, and the

science." This is the poorest sentimentality, over burden is therefore on the prisoner's counsel to

which he himself probably smiles in private. Argushow clearly that the new punishment is both ing in the other direction, one might as well refuse "cruel and unusual.” It may be granted that the to throw a rope to a drowning man because ropes punishment is “unusual,” but it must also be are used to hang men. Society will not hesitate to "cruel;” otherwise a new and evidently more hu

employ any scientific agency for capital punishment mane punishment could never be introduced be- simply because it is useful to mankind in various cause it must necessarily be "unusual.” That the ways. God brings about the death of human benew punishment is “cruel” is not self-evident. ings by the elements of fire, water and air, which Indeed, it has been adopted because it is appar

warm our bodies, quench our thirst and drive our ently less cruel than hanging, which every one

ships. In short, we regard Mr. Cockran as engaged knows is at times cruel and lingering. It can only

in a fantastic undertaking, but of course he is strivbe shown to be cruel by experience and observa- ing to get his client free in the same way in which tion. It is urged that it is not certain that human

the late Mr. William J. Hadley got Mrs. Hartung life can be designedly taken by electricity. Inas- off. He is a man of brilliant powers, but he ought much as men are accidentally killed by artificial to be easily capable of higher work than clearing electricity every day, this seems preposterous, and

bribers and murderers. yet doubtless physicians will be found to swear to this theory, just as they can be found to swear to any theory. If it should turn out to be a correct The General Term of the Fifth Department have theory it would be fortunate for the convicted, but denied an application to remove Police Justice King no reason for pronouncing the law unconstitutional,

for misconduct in office, consisting, as alleged, of unless it is also cruel; just as a law condemning violent language, partiality, passion and prejudice. murderers to be talked to death by counsel would If the opinion is correctly reported in one of the not necessarily be unconstitutional although evi- daily newspapers the court have, to say the least, dently ineffectual. Death by chloroform or char- some very lenient ideas concerning the demeanor coul would be an unusual punishment, but no one

which may be tolerated on the bench. They are would think of these agents as “unusual” in the represented as saying: “The cases coming before constitutional sense. Then is it cruel? All the ex- this magistrate are mostly of a petty and vexatious perience on the subject is to the contrary. Those character, arising among a low and abandoned class

VOL. 40 - No. 1.

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of society.“The words were uttered from the Mr. Austin Abbott, although one of the best bench, but it was the bench only of a police justice, patronized of the law-writers, is one of the very few who after years of association in that capacity with who always give more than their money's worth, the criminal classes had acquired violent and ex- and to whom the profession is always under obligatravagant modes of expression, for the manifest rea- tion. His latest book, “Trial Brief in Criminal son that that was the only language which his Cases,” in the preparation of which he was assisted auditors understood.

The words are by Mr. William C. Beecher, late assistant districtclearly slanderous; they were not uttered in the attorney of New York, published by Diossy & Co., discharge of his official duties, and he was conse- shows his distinguishing excellencies. It is a manquently amenable to the persons traduced to re- ual of the greatest convenience to the criminal-law spond in a civil action, and to criminal indictment practitioner or judge, furnishing under every title also. We do not think that the words are sufficient apt and ample reference to leading authorities, and to justify us in the removal of the officer.

deriving from them succinct statements of princiIf we should remove for this offense, the order ples. It will prove an indispensable vade mecum to would necessarily allege that the removal was made the bench and bar in such cases. for slanderous words spoken by the police justice concerning public officers, and not for any official act.” By this argument the court excuse rash

Mr. James M. Kerr has edited Richard Harris' and intemperate language not only against the county judge of Erie county but against the mayor

well-known book, entitled “Before and at Trial: of the city of Buffalo, declaring that they should what should be done by counsel, solicitor and clibe impeached and removed from office,

* ent,” and at least one-third of the present edition the result of spite and malice cherished by King consists in Mr. Kerr's own writings reprinted from toward the officials named,

the Columbia Lau Times and the American Law

was unjust in the extreme and maliciously false," and charac Journal. The chapter on “Somnambulism as a Deterize it simply as an offense “against good taste

fense” is extracted from Brown's “Life of Choate." and judicial dignity.” It would seem that if

In connection with this it would have been appro

anybody ought to be dignified and moderate in lan- priate to refer to Fain v. Commonwealth, 78 Ky. 183 ; guage it is a police magistrate, who should set a

S. C., 39 Am. Rep. 213, in which that defense was good example to the low class brought before

set up. There is a great deal of interest in the hiin, and that he should not exhibit the same bad chapters on “Fabricated Evidence,"

" " Circumstan

tial Evidence" and temper which in many cases is at the bottom of the

Mistaken Identity,” added by offenses which he is called on to punish. It must Mr. Kerr, but his style does not compare favorably be borne in mind too that the removal of such a

with Mr. Harris'. We are rather tired of David petty functionary is not to be restricted by the larger Mr. Kerr had wished to follow the “Golden Rule

Paul Brown's “Golden Rules," and think that if views properly applicable in the case of a court of record. The decision of the court in this case

he would have omitted them. Unless Mr. Kerr amounts to this: That a police magistrate may be a

heard him say it, we should be inclined to doubt

that it was Tom Corwin who invented the saying malicious, public slanderer, and a criminal lawbreaker, and the public cannot help themselves.

that if there was any thing that Providence could Are the public so helpless as this? If so, it presents not foretell it was the verdict of a petit jury. It a demoralizing spectacle. Is it possible that a

has been attributed to nearly every profane lawyer

in the country. police magistrate's demeanor and language on the

The book is very handsomely bench are not part of his official conduct?" The printed, and is sold by Williamson Law Book Co., mere fact that the individuals aggrieved have their Rochester, N. Y. Not the least glaring fault of

the book is that it has no index. private remedy against him does not determine that question in the negative, and so of the mere fact that they are not necessary to the discharge of his official duty. Official conduct, in the sense in ques- The Green Bag for June has a large portrait and tion, means conduct in public while on the bench a memoir of William Henry Rawle; an article of and acting as a magistrate. This is not a mere matter sixteen pages on the Yale Law School, with eight of deportment, taste or dignity, like smoking or put- portraits; the “ Petroleum Ointment Case,” in verse, ting one's legs upon the desk. It is a question whether by Irving Browne; the D'Anglade Case, by the edithe Supreme Court are bound to tolerate in the per- tor, and a variety of other matter, original and son of a police justice, in a city of a quarter of a selected. We think Mr. Fuller has turned the million (or less), a man who habitually utters mali- Randolph anecdote wrong-side-to. As we have alcious slanders of public authorities while on the ways heard it was Randolph who said “I never bench and acting as a magistrate, and is liable to turn out for a fool,” and the other man who said indictment therefor. If the people are enslaved to “I do." This was much more characteristic of such demoralizing conduct on the part of one of Randolph, who was better at attack than repartce. their own petty official creatures, it is high time that From the Scientific American is taken a recomsome remedy were given by statute or Constitu- mendation to execute criminals by coal gas, which tion.

is worth consideration. But why not chloroform?

IN

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NOTES OF CASES.

with the devices specifically named in the section.

That they are so, even when used with chips to play State v. Gilmore, Missouri Supreme Court, May a game of poker, we are not advised by any evi

20, 1889, it was held that playing-cards and dence in the record, or by any knowledge derived poker-chips are not a "gambling device" within from other sources. That they are not seems to apthe meaning of a statute which specifies any table pear from the nature of the particular devices, so or gambling device commonly called 'A, B, C,'far as we have been able to learn it from adjudi'faro-bank,' 'E. O.,' 'roulette,' .equality,' keno,' cated cases in courts of States the manners and soor any kind of gambling device adapted for play- cial customs of whose people most nearly resemble ing any game of chance for money or property." our own. Nuckolds v. Commonwealth, 32 Gratt. 884; Bruce, J., said: “The prohibition of section 1547 Commonwealth v. Wyatt, 6 Rand. (Va.) 694; Ritte v. does not apply to games, but to devices, and is lim- Commonwealth, 18 B. Mon. 35; State v. Hawkins, 15 ated to devices adapted, devised and designed for Ark. 259; Stith v. State, 13 id. 680. The constructhe purpose of playing a game of chance. The tion contended for is condemned by the rule of chairs upon which the players sit, the ordinary ejusdem generis.table upon which they shuffle, deal and throw the cards and chips, nickels, pennies or what not, for In Niagara Fire Ins. Co. v. Elliott, Virginia Suwhich they play in an ordinary game of cards, are preme Court of Appeals, June 1, 1889, defendant adjuncts, conveniences and incentives to a game of ivsured plaintiffs “on carriages, buggies, hacks and chance, but neither one of these, nor all combined, harnesses, their own or sold, until removed, conis a device for playing such game. The pack of stained in" a certain building “occupied as a livery cards is the device adapted, devised and designed and sales stable." Held, that the words "confor playing the game of chance -- the thing with tained in " were used to designate the usual place which the game is played. It is the device that is of deposit of the property when not in use, or while prohibited. It matters not whether the game played being prepared for use; and hat the policy covis poker, euchre, whist, seven-up, or what the name ered the property while at a repair-shop, several of the game may be, or whether the stake played hundred yards from the stable, for the purpose of for is a dollar, a dime, a nickel, or an ivory chip being repaired. The court said: “Now bearing in representing the value of either, or no value. The mind the observations of Lord Mansfield in Pelly v. question then resolves itself into this: Is an ordi- | Royal Exchange Assurance, 1 Burr. 341, that the nary pack of playing-cards a gambling device insurer, in estimating the price at which he is willwithin the meaning of section 1547, supra? In ing to indemnify the insured, must have under his prosecutions under the sections of the statute in consideration the nature of the business, and the previous revisions corresponding with 1548 and usual course and manner of conducting it; and 1549, it has been held in several cases that playing- every thing done in the usual course must have cards are a gambling device within the meaning of been foreseen and in contemplation at the time he such sections. State v. Purdom, 3 Mo. 115; State engaged, and that he takes the risk upon the sup1. Ellis, 4 id. 474; Eubanks v, State, 5 id. 450 ; State position that what is usual or necessary will be done. v. Bates, 10 id. 109; State v. Herryford, 19 id. 377; | Should the words 'contained in,' upon which the State v. Scaggs, 33 id. 92. But we have failed to plaintiff in error rests its contention, be construed find a case prosecuted under the law contained in to restrict the liability of the company to the use section 1547, which has been on the statute book, of the property at the place specified, or should in terms substantially the same as in the present re- those words, when used with respect to property of vision, since 1825, in which it has been held that the kind destroyed, be construed as merely desigsuch cards were

gambling device within the nating the accustomed place of eposit of the propmeaning of that section; and it having never been erty when not in use or being used for some purso expressly ruled, we do not feel constrained in pose incidental to its use? Where merchandise this case, in which we are called upon to pass upon kept in stock, or carriages kept in a carriagethis question directly, to follow conclusions that maker's establishment for sale, are insured, there is might be drawn from dicta in some of those cases in nothing in the nature of the property to indicate which this section was only indirectly considered, that it will be removed before it is sold, and unless an independent examination of the statute hence the insurer may be supposed to have underwill warrant it. The application of a few familiar written the policy upon the idea that the property principles of interpretation ought to determine the would be entitled to whatever protection the charquestion. Certain gambling devices are specifically | acter of the building and its situation might afford, named in the section under consideration. Cards, and that it should be exempt from the risks inciare not of the number. Following those specifi- dent to temporary removals, or to the use of the cally named are the general words or any kind of property at other than the specified place of locagambling device adapted,' etc., under the rule that tion. But where the property is of such a kind where general words follow particular ones they that it must be kept in constant use, and therefore must be construed as applicable to things of the of necessity be often in need of repairs, no room same general class. Cards are not included in this for such an inference can exist; and in such a case general designation, unless they are ejusdem generis we are constrained by every principle applicable to

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the covstruction of contracts of this kind to hold the plaintiff was arrested for a violation of a city
that the words contained in 'were used to desig- ordinance, which is made, by section 3820 of the
nate the usual place of deposit for the property Code, a criminal offense, and therefore it is very
when not in use, or while being prepared for use. similar to this. But it is distinguishable in that
As was said by Adams, J., in McCluer v. Insurance the plaintiff, Lewis, was confined in a narrow cell
Co., infra, the words contained in' are in cases of eight by fourteen – located in a cellar under the
this kind synonymous with the word 'kept,' and market-house, with no window and no ventilation
yet it would hardly be maintained that a plaintiff except a grate in the door that opened on an under-
who had signed an application, in which he had ground passage with a window at one end, lighted
said that he kept his carriage in his barn, would be through a grate on the sidewalk. Reviewing the
deprived of the benefits of the policy merely be admitted facts, Justice Reade for the court said:
cause at the moment he obtained the policy it was 'It was an impossibility that such a place could
standing at the door of the insurer's office, and was secure health and comfort,' in the language of the
there consumed by fire. To the same effect is the Constitution, or that it could be clean,' in the
great current of authority. McCluer v. Insurance Co., language of the statute.'' See Stuart v. Supervis-
43 Iowa, 349; S. C., 22 Am. Rep. 249; Peterson v. ors, 83 Ill. 341; S. C., 25 Am. Rep. 397; People v.
Insurance Co., 24 Iowa, 494; Noyes v. Insurance Co., Supervisors, 84 III. 303; S. C., 25 Am. Rep. 461.
64 Wis. 415; S. C., 54 Am. Rep. 631; Longueville v.
Assurance Co., 51 Iowa, 553; S. C., 33 Am. Rep.
146; Railroad Co. v. Insurance Co., 7 Gray, 64; Hol-

INSURANCE-MARINE-ABANDONED brook v. Insurance Co., 25 Minn. 229; Mills v. Insur

CARGO--SALE--LIMITATIONS-TREASUREance Co., 37 Iowa, 400; Lyons v. Insurance Co., 14

TROVE-TITLE-SALVAGE. R. I. 109; S. C., 51 Am. Rep. 364; 43 id. 32; and 1 Wood Ins. 115, et seq.Contra, English v. In- UNITED STATES DISTRICT COURT, E. D. MICHIGAN, nce Co., 55 Mich, 273; S. C., 54 Am. Rep. 377.

APRIL 15, 1889.
See note, 43 Am. Rep. 34.

MURPHY V. DUNHAM.*
The cargo of a vessel sunk in forty feet of water in Lake

Michigan and abandoned to the underwriters is the proper
In Mofsit v. City of Asheville, North Carolina Su-

subject of a sale by such underwriters to a third person. preme Court, May 9, 1889, it was held that where a

Such cargo is not by the common law a wreck of the sea. city has built a reasonably comfortable prison, and

The year and a day fixed by the statute of Westminster

within which the owner of wreck is bound to make his furnished its officers the supplies required by law,

claim, begins to run from the day the goods are actually it is not liable to a prisoner for neglect of the jailer taken and seized by the finder. to furnish proper fires or bed-clothing, the city be

The United States has no title to property sunk on the bot

tom of Lake Michigan. ing ignorant of such neglect, not negligent in The title of such property when sunk off the coast of Illinois overseeing the prison. The court said: “However does not vest in the State by virtue of any State statute. the general question of the liabilities of counties by A cargo of coal lying at the bottom of Lake Michigan was

raised by the owners of the vessel, acting under the advirtue of this legislation may hereafter be settled, vice of counsel, after notice by the owner of the coal of we may safely say that neither counties nor towns his claim of title, and was disposed of in Chicago at prican be required as a general rule to answer in damı- vate sale. Held, that the owner of the cargo was enti

tled to recover its value, less the necessary expense of ages for injuries to prisoners caused by the neglect

raising it and carrying it ashore by the most approved
of their respective jailers, policemen or guards who appliances for that purpose.
may bave immediate charge and custody of them,
and of which the governing officials of the corpo-

N Admiralty. This was a libel for the tortious con-
IN

version of 981 tons of coal. About the 12th of ration had no notice. We think that where win-May, 1883, the schooner Wel Burt, of which responddow glass in the window of a police prison has been

ent Dunham was the owner, started from Buffalo with broken, and the bed-clothing furnished for its in

a cargo of 1,375 tons of chestnut coal, consigned to mates has been destroyed, but the governing offi- Chicago. On the 18th of May she arrived of Evans

ton, Ill., where she was last seen at anchor. A heavy cers of the town are not shown to have had actual

storm swept the lakes that night, and when it abated notice of the breaking or destruction, or to have the schooner had disappeared, having foundered at been negligent in omitting to provide for such her anchorage with all on board, neither man nor anioversight of the prison as would naturally be ex

mal surviving. The whereabouts of the schooner were pected to give them timely information of its con

wholly unknown for some time. The schooner was

partially insured, the uninsured interest being worth dition, there is not such a failure in discharging from eight to ten thousand dollars. Respondent abanthe duties of construction or superintendence as to doned “all his right, title and interest" in her to the subject the corporation to liability. We do not underwriters as a total loss,“ reserving however the wish however to be understood as intimating that a

benefit of salvage (if any)." The cargo was insured in city or town would not be liable, if it should retain

the Continental Insurance Company, and was also

abandoned to the underwriters immediately after the incompetent or careless jailers or servants after

loss. On the 30th of June, six weeks after the vessel notice of their character, for damages caused by foundered, Lorenzo Dimick, acting as the agent of the thei negligence, though the question is not directly Continental Insurance Company, the underwriters of presented in this case.

The case of Lewis the cargo, made a bill of sale of the cargo to the libelv. City of Raleigh, 77 N. C. 229, was one in which

*38 Fed. Rep. 503.

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