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that a man could lewdly expose his naked person to in- of the injured party made to the officer, under the mates of two dwelling-houses, as was said in the case of circumstances, as being sufficiently connected with the Reg. v. Holmes, 6 Cox C. C. 216, “this would uot be & principal event to be the natural outgrowth of it, and country fit to live in if such an abominable outrage free from the suspicion of plan or after-thought. Upon could go unpunished.” According to the law of this this subject the authorities are not uniform, Somo offense the place is a publio one if the exposure is such courts are inclined to hold the rule with much striottbat it is likely to be seen by a number of casual ob- ness as to the time and circumstances under which
lu the case of Reg. v. Farrell, 9 Cox C. C. 446, the statements proposed to be showu are made, while which is an authority relied upon by the defense in the others allow a wider range for its application, leaving present instance, it was declared that by an indecentex- it to be applied largely in the sound discretion of the posure in a place not far from a highway the common- trial court. 15 Am. Law Rev. 85; Com. v. Densmore, law offense had not been committed, but the court was 12 Allen, 537; People v. Davis, 56 N. Y. 102; Com. v. careful to supplement its decision with the remark McPike, 3 Cush. 184; Insurance Co. v. Mosley, 8 Wall. * that it is not to be taken that we lay down that if 397; O'Connor v. Railroad Co., 27 Minn. 171; S. C., 6 the prisover was seen by one person, but there was N. W. Rep. 481. Our examination leads us to couevidence that others might have witnessed the offense clude, that especially in cases of tort involving perat the time, we would not uphold the conviction." sonal injury, the weight of authority in this country Sup. Ct., N. J., February, 1884. Van Houten y, State. is in favor of allowing evidence of the declarations or Opinion by Beasley, C. J. (46 N. J. L. 16.) (See 15 statements of the injured party, touching the cause or Eng. Rep. 151; 67 Barb. 226; 4 Hun, 636; 55 N. H. 242. circumstances of the injury, made so soon after the -ED.)
event, and under such circumstances as to warrant the
trial court in presuming that they grew out of and GRAND JURY-CHALLENGE TO.-At common law the were dependent upon it, and could not have been desheriff of every county was required to return to every vised or contrived by the declarant for his own pursession of the peace, and every commission of oyer puses. Insurance Co. v. Mosley, 8 Wall. 397; Harriand terminer, and of general jail delivery, twenty- man v. Stowe, 57 Mo. 93; Driscoll v. People, 47 Mich, four good and lawful men of the county, some out of 416; S. C., 11 N. W. Rep. 221; Jordan's case, 25 Grat. every hundred, to inquire, present, do and execute all 945; People v. Vernon, 35 Cal. 51; Burns v. State, 61 those things which the law required. 4 Bl. Comm. 302. Ga. 194; Augusta Factory v. Barnes, Ga. Sup. ('t. The jurors returned were to be good and lawful; that April, 1884. In the last case the party was severely is, men free from objections, such as bias, prejudice or injured while employed in a factory. She was reother objection affecting their fairness or impartiality. moved to her home, and about one-half hour after, In other words, grand jurors, like petit jurors, were while enduring severe bodily suffering, which had required to be indifferent between the parties, and be continued in the interval, she made a statement to her guided solely by the evidence iu determining whether father of the particulars of the cause of the accident, or not au iudictment should be found against the ac. which the eourt held proper to be received as part oused. People v. Jewett, 3 Wend. 314; United States of the res gestae. In O'Connor v. Railroad Co., 27 v. White, 5 Cranch C. C. 457; Com. v. Clark, 2 Brown Minn. 173; S. C., 6 N. W. Rep. 481, this court after re(Penn.) 325; State v. Gillick, 7 Iowa, 287; People v. viewing the cases, and in considering this subject genManahan, 32 Cal. 68; State v. Quimby, 51 Me. 395; erally, say “that a considerable time may elapse and Whart. Crim. Pl., $ 346; Newman v. State, 14 Wis. 393. yet the declaration be a part of the res gesta,'' and But personal objections to the fairness of jurors must “that each case must depend on its own peculiar cirbe'made before the jury is impanelled and swori). Peo- cumstances, and be determined by the exercise of ple v. Jewett, 3 Wend. 321. The practice in this State sound judicial discretion.". In the case at bar the withas been for the court to examine the jurors as to their ness had been waylaid and robbed. He had suffered qualifications before the jury is impanelled. If the personal violence. A great crime had been commitjurors are found to be legally qualified, and no per- ted. He had specially observed and marked bis assailgonal objections as to bias or prejudice are made against ants at the time. And while great care and discrimiany of them, the jury is impanelled and sworn. Ob- nation should be exercised in receiving evidence of jections on the ground of prejudice or bias, is made this kind, we are unable to say that the court erred in afterward, cannot be considered. In the case at bar its judgment in this case iu admitting the evidence in the plaintiff did not ask leave to examine the jurors question. It might be considered that when the de: until after the jury had been impauelled and sworn. clarant thus described the men who had assaulted There was no error therefore in overruling the applica- ( him, whom it appeared he had never before seen, bis tion. Patrick v. State. Sup. Ct. Neb, July 1, 1881. mind was still so occupied and absorbed with his exOpinion by Maxwell, J. (20 N. W. Rep. 121.)
citing and hazardous experience as to maintain for 80
brief a period a close and natural connection between EVIDENCE - ASSAULT AND ROBBERY-DECLARATIONS
the event and his statements to the officer, and that ---RES GEST Æ.--In cases involving personal injury, evi.
hence such statements would be the direct and natural dence of declarations of the injured party, touching
outgrowth of the robbery and its concomitauts, and the cause or circumstances of the iujury, made soon
they would derive a special credit from that fact after and in close connection with the event, and ap
(though they would otherwise be hearsay), aud would pearing to grow out of and be dependent upon it, and
also be relieved from the suspicion of device or afterunder such circumstances that they could not rea.
thought. See Whart. Ev., $ 259; ; Greenl, Ev., $ 108. It sonably have been contrived for the purposes of the
was clearly competent for the witness to testify that declarant, is admissible as part of the res gesta. The
he recognized and identified the same parties the next complaining witness was waylaid, knocked dow!, and morning at the police station, and the particulars of robbed in a publio street at night. The assailants then
such identification were properly received. We see fled, and the witness immediately gave the alarm, re
no error or abuse of discretion in the refusal of the turned to his house near by, and a few minutes later,
court to grant a new trial on the ground of newly dison tbe arrival of a police officer, described to him the
covered evidence. Order affirmed. Sup. Ct. Minn., appearaíce of the persons who made the assault.
Oct. 13, 1884. State v. Horan. Opinion by VanderUpon the trial, after the details of the assault and
burgh, J. (See 35 Am. Rep. 30; id. 596; 28 Eug. Rep. robbing had appeared in evidence, held, that the trial
592; 31 id. 741; 78 Mo. 380; 69 Ga. 68; 39 Ohio St. 74; court might properly receive proof of the statements 61 Miss. 158, 161.--En.)
The Albany Law Journal.
archy and confusion, for it will soon be upon us in the direst forms. The lawyers who invented this
process of throttling their political opponents are ALBANY, JANUARY 10, 1885.
open to the gravest censure at the hands of all re
spectable law-abiding men. CURRENT TOPICS.
It may be possibly thought that we are inclined to THE ungeemly spectacle which has lately been dis- bestow more attention upon some of the objectors
played in the courts of justice, held in the city to codification than their objections intrinsically of New York, in which the aldermen have alter- merit, and there is force in this suggestion. But when nately been enjoined and released, has only been the New York City Bar Association sees fit to prosurpassed in unseemliness by the eagerness of the mulgate the social theories of such neo-pbilosophers aldermen to measure out the office-spoils of that un- as Mr. J. Bleecker Miller it magnifies them into fortunate city. Whatever the provocation, snap prominence, and we may be excused from dwelling injunctions upon inadequate grounds do not seem upon them. Mr. Miller detects latent incendiarism, to people outside of the city ot New York to be the
social retrogressions to barbarism, and lynch law proper remedy for aldermanic misconduct. The
in codification, and he avows it, and the associalate mayor was certainly an unfortunate example of tion deliberately prints it. Now gentlemen with the ordinary American idea that special training is conclusions so radical as these are bound to furnish unnecessary for public office and that a good and
facts or else they are open to the suspicion that their sagacious merchant may be turned into a good any theories are examples of false induction. We deny thing else he chooses at a moment's notice. He ap- that any of the conditions of our political society pears to have barricaded himself in the mayor's
warrant any such notions as those in the awful office during the excitement, in order to avoid the horoscope of the gloomy introspective Mr. Miller. inquest of the grand jury which his friends professed The inventors of radical social theories should beto fear was wholly in the interest of Mr. Grace, his
fore announcing them subject them to the methods opponent. The entire machinery of the courts and
pursued by the other professors of social science, of the county appears in fact to have been involved
experiment and verification. The fashionable modern in the interest of Mayor Grace's new administration, philosophy of Spencer, Fiske, Maine and other rethe desire of his friends being that he and not the condite thinkers is the result of laborious research out-going mayor should fill the vacant public offices. into the facts of social evolution and of the inIn other words, a political struggle between the ad- ductive method in scientific research. It is not a herents of Mayor Grace and the adherents of Mayor philosophy of high sounding terms and hasty conEdson was championed by the judges and the scene clusions only; but this is generally conceded and of its conflict transferred to the halls of justice, need not be emphasized. If anybody thinks he can where a ridiculous pugilistic contest against time palm off on an intelligent American public a new and somewhat impromptu took place. If this kind social theory produced off-hand out of a superficial of spectacle is permitted to go on in the interest of German mysticism, half understood, and the mere the politicians why not rename some of the tribunals
terms of modern English philosophy wholly misapafter the shade of political opinion entertained by
plied, he is greatly mistaken.
We have no patience one might be the “ Court of the County
with quackery in any profession, and a learned assoDemocracy," another the “Court for Tammany Hall,” ciation which sees fit not only to tolerate on its and a third the “Court of the Straightout Republi- records, but to print such hasty generalizations as cans." In this event there need be no subterfuge those of Mr. Miller, well deserves to share in the and all sides could be equally protected by injunc- ridicule which Molière bestowed on the French tions and vacaturs, while an over-zealous grand jury doctors of the seventeenth century. If the City of the county could be quashed all around. Seri- Bar Association will spare the public any more ously speaking we think the course of Mayor Grace's | theories such as that codification leads to lynch law friends most demoralizing, and that it would have we shall then be able to spare our space for more been far better in the interests of public decency and important matters. morals that Mayor Edson should have been permitted to appoint to office the worst elements of We fully agree with the Virginia Lar Jounal, society than that Mayor Grace should have gained that the judges ought not to make the head-notes the day by the methods chosen by his advisers. for their reported decisions. The Journal says: What the unfortunate tax payers of New York city
" It does not follow that the man who does the work must think of its judicial machinery, is the worst is best qualified to interpret it and state its results aspect of this whole affair. If there is any power in with accuracy and conciseness, any more than it the State to call all the participants to a rigid account follows that a great author must be also a great it should be immediately invoked, for a more seriously
critic and analyst. The two things require differwicked and vulgar display has never been seen in ent faculties of mind; and while it is not impossible the solemo halls of justice. If this sort of thing is
that these faculties should unite in an individual permitted to go on uuchallenged by the powers of we believe it is very rarely the case that they do, the State we may as well give ourselves over to an- since they are in fact somewhat antagonistic. One
VOL. 31 - No. 2.
of the first requisites - indeed, an indispensable The tradition is that it was so held because the
"The court of the lord the king
Called the court without law, terms. The habits of mind thus induced do not
Holden there tend to condensation or rigid analysis, but rather
By the custom thereof
Before sunrise, the contrary. The judges create, they do not take
Unless it be twilight, to pieces. The reporter, on the other hand, is (or
The steward alone ought to be) a skilled specialist, an ana.yst, whose
Writes nothing but with coals,
As often as he will, sole duty it is to take the work as he finds it, reduce
When the cock shall have crowed. it to its constituent elements, and out of these pro
By the sound of which only duce the minutest possible photograph of the whole,
The court is summoned.
He crieth secretly for the king which shall yet show every feature of the decision.
In the court without law; Such work, whatever one's natural facilities, re
And unless they quickly come, quires special training and long practice. We are
They shall the more quickly repent;
And unless they come secretly opposed to the judges as reporters of their own de
Let not the court attend. cisions. They are, almost without exception, busy,
He who hath come with a light, hard-working men, with fully as much of labor and
They are taken in default,
The court without care responsibility upon them as they ought to be re
The jury of injury.'” quired to bear. If, as is paradoxically true, they write long opinions because they have not the time
Contradictory reports reach us about the health of to write short ones, we hardly know how they would
Chief Justice Waite. It would seem that his illness fare if required to make the head-notes to their own
although serious is not so critical as was at first repdecisions; but we ought to know by analogy what
resented. At all events there is no excuse for the sort of head-notes they would make.” This states the case very admirably. The nead-notes prepared the 4th of March, and the assignment of his office
indecent speculations upon his possible death before by the judges are not among the worst, but they which the partisan newspapers have published. It certainly are not the best. They are generally too
is hoped that the honored chief will be spared many diffuse; state the logical processes by which the conclusion is arrived at; and state the general princi- years to continue the example which he has set of ples of which the case is an exception or modifica
an able, dignified, impartial and modest administra
tion of his great office. tion, or the exceptions and modifications to the
In short, the judge is generally too anxious to put his best foot forward in the syllabus, instead
NOTES OF CASES. of stating the bare point. We have seen an evidence of these tendencies of the judges in their cor
v. Hoeflick, Court of Appeals of Maryland, Oct. They are always for amplification and hedging 1884, 18 Rep. 822, it was held that the fare of a about, and very seldom fail to make the reporter's child in charge of a passenger on a railroad train is work worse than it was. Let not the judges go be
properly chargeable to the passenger, and if the latyond their bench; they are no reporters.
ter refuses to pay it both may be ejected from the
train, though the passenger had paid his fare. The Mr. Ernest J. Miller, of this city, has recently read court said: “The plaintiff had paid her own fare, before the Albany Institute a very interesting and and the defendant had no right of course to eject learned essay on
“ London Stone.” Mr. Miller gives her from the train, unless there was a contract, exthe following account of the “Lawless Court,” held
press or implied, on her part to pay the fare of her on King's Hill, in Rochford, Essex: “ It is called
younger sister. There is no evidence of an express lawless because it is held at an unlawful or lawless contract, and if one is to be implied it must be on hour, meeting at night time instead of day time.
the ground that the younger sister was under her
rections of the proposed head-notes of the reporters
. IN Philadelphia, Wilmington and Baltimore R. Co.
charge, and being under her charge and thus respon- | held that a city is not liable for an injury resulting sible for her presence in the car, it was her duty to from the unsafe or dangerous condition of its lands sec the fare was paid. The defendant was under adjacent to a street where the place of danger is so no obligation, of course, to carry the younger sister far from the street that no injury can result to perwithout being paid a reasonable compensation, and
sons in the ordinary and proper use of the street, if she was under the plaintiff's charge it is but fair and the fact that a pavement was continuous from a and reasonable to hold her responsible for the fare.
sidewalk on a street, over the adjacent lands to the Under such circumstances the law would imply an
place of danger, was not, of itself, an implied inagreement on her part to pay the fare of the child, vitation to a person on the sidewalk to go upon the and if she refused to pay it, the defendant had the adjacent lands. The court said: “If business is right to put off both, the plaintiff and the child
carried on upon the lot, or any curiosity kept there the plaintiff, because she had not complied with the open to the public, or any inducement or allurements contract on her part implied by law, and the child, held out to the public beyond a mere permission to because the company was not required to carry it go there, the duty to keep the premises safe arises; unless its fare was paid according to the rules and
but if a lot is left unfenced, a person who goes upon regulations of the company."
it by bare permission, because there is no obstruction
to keep him off, goes at his own risk. Railway Co. In Crocker v. McGregor, 76 Me. 282, an action for v. Bingham, 29 Ohio St. 364; S. C., 23 Am. Rep. an injury to the plaintiff by the fright of her horse, 751; Beck v. Carter, 68 N. Y. 283; S. C., 23 Am. by steam escaping from the defendant's mill, situ- | Rep. 175. There is no proof in the case to show ated on the margin of the public highway, held, that that there was any thing whatever on the city lot to evidence was admissible to show that other horses, induce or invite any person to go upon or across it ordinarily safe, when driven by it on other occasions for any purpose unless for the purpose for which the a short time before and after, when the construc plaintiff went there; " i. e., to urinate; nor is there tion and use of the mill were the same as when the any proof that the plaintiff went there upon any plaintiff was injured, were frightened by it. The business with any person there, or for any purpose court said: “The issue was, whether the mill as whatever, except to get into the darkness in the constructed and used, with the steam escaping into shadow of the building. If there had been a busithe way, was a nuisance to the public travel. Evi- ness room in the building, or upon another part of dence showing that it naturally frightened ordinary the lot, which would have been an implied invitahorses when being driven by it, was competent to tion to the public to go there, it still would not help show its effect upon the public travel, its character the plaintiff when he admits that he did not go and its capacity to do mischief. Its effect on horses upon the lot for any such purpose. The fact alone was not dependent upon the acts of men, which may
that the stone pavement extended from the street be the result of incapacity or negligence, but was
about twenty feet to the front wall of the first story caused by action of the inanimate thing upon an
and around the corner of the building about twelve animal acting from instinct. It was not to show feet, along the east side of it, cannot be treated as that other parties were injured at the same place by
an implied invitation to a person passing along the the same cause, and is therefore distinguishable street to turn aside and follow it in the darkness from cases against towns for injury from defects in
across private property, without any purpose or oba highway, in which this court has held that evi-ject that could have been foreseen or anticipated by dence of accidents to others at the same place is in
the owner of the property. If the pavement beyond admissible, because it raised too many collateral
the limits of the street led to any place where perissues
. Here the only issue is the effect of the sight sons on the street might be expected to go for any and sound of the steam upon ordinary horses, as
legitimate purpose, the result would be different. tending to show that travel over the way was thereby
The city should not be held to foresee or anticipate rendered dangerous. Hill v. P. & R. Railroad Co.,
that persons would leave the sidewalk and go along 55 Me. 439; Burbank v. Bethel Steam Mill Co., 75
the side of the building for the purpose for which id. 373; S. C., 46 Am. Rep. 400. We think the
the plaintiff went there. And if not, the fact that competency of the evidence rests upon the same
it extended the stone pavement to the open area, or principle as evidence, in actions against railroad
if it had extended it much farther, would not have corporations for damage by fire, alleged to have been been, of itself, an implied invitation to the plaintiff set by coals or sparks from a passing locomotive,
or to any passer on the street to use the pavement.” that the same locomotive, or others similarily con
See Lang v. Cleveland, etc., R. Co., 78 Ind. 323; S. structed and used, have emitted sparks and coals, C., 41 Am. Rep. 572. and set fire at other places and on other occasions. It tends to show the capacity of the inanimate thing
In Socher's Appeal, Pennsylvania Supreme Court, to do the mischief complained of.
Grand Trunk R. Jan. 1884, 41 Leg. Int. 501, a husband left all his Co. v. Richardson, 91 U. S. 454; Whitney v. Inh's of property to his wife on her promise to keep it for Leorninster, Mass. Supreme Court, not yet reported.” their children. After his death she married again,
and devised all her property to her second husband. In. Kelley v. City of Columbus, Ohio Supreme Court Held, that equity had jurisdiction to enforce the Commission, June, 1884, Cin. L. Bull, Supp., it was trust against the second husband, and the children
need not be confined to the remedy of ejectment of the fugitive's guilt. It is sufficient if an authen-
Hooper, 52 Wis. 702; State v. Hufford, 28 Iowa, 391.
In the first case the court speaking through Mr.
Justice Cole say: " While the act of Congress speaks
of an indictment found or an affidavit made before
a magistrate, yet I do not think it was intended T is no objection to the granting of the warrant to exclude a case where the charge is in the form of
that the offense, made a crime or misdemeanor by a criminal information.” It is no objection to the the laws of the demanding State, is not a crime or warrant that the indictment on which it is predmisdemeanor under the laws of the State to which the icated is technically insufficient. The court will fugitive has filed and from which he is demanded. not inquire into its sufficiency, provided it appears Work v. Corrington, 34 Ohio St. 64; S. C., 82 Am. to charge an offense made a crime by the laws of Rep. 345; People v. Brady, 56 N. Y. 188; Kentucky the demanding State. Davis's case, 122 Mass. 324; v. Dennison, 24 How. 66; on this point also the dis- In re Voorhes, 32 N. J. L. 141; In re Greenough, 31 cussion of the United States Supreme Court is final. Vt. 279; In re Clark, 9 Wend. 212. In People v. In Kentucky v. Dennison, Chief Justice Taney on be- Brady 56 N. Y. 182, the court held that an affidavit half of the court disposes of this question in these which did not set forth facts sufficient to constitute words: “The argument on behalf of the governor a crime at common law as that law had been interof Ohio which insists upon excluding from this preted by the courts of that State, was not sufficient clause new offenses created by a statute of the State to sustain an executive warrant for the apprehension and growing out of its local institutions and which and surrender of the fugative, the court saying: “It are not admitted to be offenses in the State where the is a reasonable rule supported by obvious considerfugitive is found nor so regarded by the general usations of justice and policy that when a surrender age of civilized nations, would render the clause is sought upon proof by affidavit of a crime the useless for any practical purpose. For where can offense should be distinctly and plainly charged." the line of division be drawn with any thing like The affidavit or indictment should state that an ofcertainty? Who is to mark it? The governor offense was committed within the demanding State. the demanding State would probably draw one line Matter of Heynard, 1 Sandf. 701; Ex parte Douaghey, and the governor of the other State another, and if 2 Pitts. 166; Ex parle Smith, 3 McLean, 121. It they differed who is to decide between them? Un- must also appear by affidavit that the alleged fugider such a vague and indefinite construction the tive has fied from the demanding State. Matter of article would not be a bond of peace and union but | Heyward (supra); Ex parte Smith (supra); Hartman a constant source of controversy and irritating dis- V. Aveline, 63 Ind. 314. The court on habeas corpus cussion.” It is also necessary to inquire what pre- has the right to determine whether the party deliminary steps must be taken to justify the executive manded is in fact a fugitive from justice, and the in complying with the requisition. The act of 1793 decision of the executive on this point is not binding requires the executive of the demanding State to on the judiciary. Jones v. Leonard, 50 Iowa, 106 ; produce to the governor of the State upon which the S. C., 32 Am. Rep. 116. In this case the court held demand is made
a copy of an indictment found or that " a citizen and resident of one State charged in an affidavit made before a magistrate of any State a requisition with constructive commission of crime or Territory” charging the fugitive with having in another State from which in fact he has never committed treason, felony or other crime and duly fled is not a fugitive from justice, and the determiauthenticated by the executive. In construing this nation of the governor as to the sufficiency of the provision of the statute the courts have uniformly facts alleged is not conclusive." held that the requisition must be founded upon an Of course where on habeas corpus all the papers on authenticated copy of an indictment, information which the warrant is founded are produced, the or affidavit, and that the mere statement by the court has the right and is bound to pass upon their governor of the demanding State that the fugitive sufficiency to justify the granting of the warrant. stands charged with a crime in the State is insuffi- People v. Donohue, 84 N. Y. 438; People v. Brady, cient. In re Doo Woon, 18 Fed. Rep. 898; Soloman's 56 N. Y. 182. But cases may arise in which the case, 1 Abb. Pr. (N. S.) 347; Matter of Rutter, 7 id. executive may refuse to submit such papers to the 67; Ex parte Pfitzer, 28 Ind. 451; Ex parte Thornton, court. That the production of such papers on the 9 Tex. 635.
hearing cannot be compelled appears to be well setThe affidavit, information or indictment should tled by the authorities. State v. Burgine, 4 Har. be duly authenticated by the executive. Solomon's (Del.) 572; Leary's case, 6 Abb. N. C. 43; In re case, 1 Abb. Pr. (N. S.) 347. It should also appear Leary, 10 Benedict 197. In the event of the papers that the fugitive is charged with a crime in the de- being withheld, must the warrant recite all the necmanding State. Exc parte Lorraine, 10 Nev. 63. essary facts? That it should cannot be seriously However it is not necessary that there should be an questioned. In re Jackson, 2 Flip. C. C. 183; In re authenticated copy of an indictment or affidavit, al-Doo Moon, 18 Fed. Rep. 898; Ex parte Thornton, 9 though the act does not in express terms authorize Tex. 635; People v. Donohue, 84 N. Y. 438. Where the granting of the warrant upon any other evidence the warrant does recite all the essential facts, can