In a proceeding against a disorderly person for abandoning his wife, it
is no defense that the wife has left the husband's house, if it
appears that she had reasonable cause to do so because she was in
imminent danger of suffering personal violence at the hands of her
husband. It is therefore error to exclude testimony showing that
it was unsafe for the wife to remain in the house of the accused.
People ex rel. Scherer v. Walsh,
ACCESSORY.
See People v. Ryland,
ACCOMPLICE.
See PRINCIPAL AND ACCOMPLICE.
See LIMITATION OF ACTIONS; PRACTICE.
1. The General Term of the Supreme Court has no inherent power to
correct errors and mistakes, however gross, committed upon a
trial for a criminal offense, and such authority is to be found only
in the Code of Criminal Procedure. People v. Dempsey,
117
2. Under said Code (§ 515), the only mode of reviewing a judgment or
order in a criminal action, is by appeal, and under § 518 thereof,
the people may appeal to the Supreme Court in two cases only;
from a judgment for defendant on demurrer to indictment; and
from an order arresting judgment. lb.
8. Accordingly, held, that the people cannot appeal from an order set-
ting aside and discharging a grand jury, and quashing an indict-
ment found by it, on the ground that said grand jury was drawn
under an unconstitutional act. Ib.
4. The power conferred upon the Supreme Court by the provisions of
§ 527 of the Code of Criminal Procedure, to grant a new trial when
the verdict is against the weight of evidence, or against law, or
when justice requires a new trial, whether any exception shall
have been taken or not in the court below is a discretionary one,
and where it cannot be said that this discretion has been abused
the decision of the Supreme Court will not be reviewed upon
appeal to the Court of Appeals. People v. D'Argencour,
267
5. Whatever right of appeal to the court of Sessions, from a judgment
or ruling of a court of Special Sessions exists, is to be found in the
Code of Criminal Procedure, section 749, which provides that a
judgment "upon conviction" may be reviewed by the Court of
Sessions of the county, &c. People v. Norton,
6. Where the prosecutor in a criminal proceeding in the court of
Special Sessions is charged under section 719 of the Code of Crim-
inal Procedure with the costs of prosecution, by reason of having
instituted it without probable cause, such determination is not a
judgment upon conviction, and therefore, the prosecutor has no
right of appeal therefrom to the Court of Sessions.
7. Whether such appeal lies to the County Court under sections 3044,
3045, of the Code of Civil Procedure, quære. Ib.
8. In special proceedings of a criminal nature prior to the amend-
ment of section 515 of the Code of Criminal Procedure, by L. 1884,
ch. 372, the proper method of review was by certiorari, and not by
appeal. People ex rel. Scherer v. Walsh,
325
9. The indictment in this case was found in June, 1881,-Held, that
the review of the judgment is governed by the laws in force before
the Code of Criminal Procedure took effect. People v. Augs-
bury,
561
10. Where the judge instructs the jury that they must find the accused
guilty or innocent under one count of an indictment, the appellate
court will not consider whether the evidence would justify a con-
viction on another count not submitted to the jury. People v.
Conroy,
565
11. In a case where conflicting questions of fact are passed on by the
jury the defendant is entitled to a review of such facts by the
General Term. 1b.
12. To show that the General Term, in granting a new trial on an
appeal, where questions of fact arising from conflicting evidence
have been tried by a jury, granted such new trial on the facts, it
is essential that its order should state that it has considered the
facts and what is the result of such consideration. If it certifies
that it finds no reason for granting a new trial upon the facts, and
orders a new trial upon a question of law exclusively, such ques-
tion may be properly brought to the Court of Appeals for review.
Ib.
Presumption as to constitution of trial court. See People v. Bork,
Decision of trial judge overruling challenge, appealable to Court of Appeals.
See People v. Casey,
When error in examination of juror is not brought up on appeal from
judgment. See People v. Petmecky,
Power of Appellate Court as to sentence.
ex rel. Bork v. Gilbert,
See People v. Bork, 56; People
See OBSCENE, &c. PICTURES, 4.
ARREST OF JUDGMENT.
A motion in arrest of judgment must be made for some defect which
appears on the face of the record, and cannot be based upon a
mere affidavit showing the existence of extrinsic facts. People v.
Kelly,
1. Striking a person upon the head with a pistol, thereby inflicting
severe injuries, is sufficient under Pen. Code, § 218, subd. 3, 4, to
create an assault in the second degree, since that may be done by
inflicting a wound upon another, with or without a weapon, or by
the use of any instrument or thing likely to produce grievous
bodily harm. And the question whether such instrument was
likely to produce said result is properly submitted to the jury.
People v. Irving,
47
2. Where the record of the conviction of a prisoner, in the Special
Sessions of New York, shows that he was convicted of "the mis-
demeanor of assault and battery," where the conviction is attacked
collaterally on habeas corpus, it will be presumed that the offense
referred to was what is now designated under the Penal Code,
§ 219, as assault in the third degree, of which offense the Special
Sessions has jurisdiction.
Semble, that had the offense been described simply as assault and bat-
tery, the result would be the same. People v. Maschke,
3. Upon the trial of an indictment for assault, with a dangerous weapon,
whether the pistol with which the assault was committed by strik-
ing complainant therewith, was an instrument or thing likely to
produce bodily harm, is a question for the jury, though the
weapon was not produced or otherwise described than by its com-
mon name, the character of the wounds inflicted being severe and
fully described. People v. Irving,
171
4. It appeared that complainant, while endeavoring to enter the door
of defendant's hotel, where defendant was entertaining a company
at a dance, was seized by the latter, without warning or notice,
and ejected with great force and violence. Held, upon the trial of
an indictment for assault and battery, that evidence of a previous
notice by defendant to complainant, not to enter his premises,
was inadmissible in justification of the assault, and that it was
still defendant's duty to notify complainant that he could not
enter before ejecting him, it also appearing that defendant used
more force than was necessary in ejecting complainant; further,
that evidence that complainant was intoxicated at the time was
also inadmissible, that not having been the objection to his entry.
LEARNED, J., dissenting, wrote for reversal and new trial. People v.
Van Vechten,
See EVIDENCE, 1, 2, 5, 6; INDICTMENT, 7. ·
BEGGING.
See CHILDREN.
BILL OF PARTICULARS.
A copy of the minutes of the grand jury may, in the discretion of the
court, be ordered to be furnished to the accused when necessary to
enable him to prepare for trial. Where the statements of an in-
dictment are sufficiently definite to advise the accused of the
charge made against him, he is not entitled to any further partic-
ulars; but where the counts are so general and embrace so many
subjects that they do not advise the accused with sufficient dis-
tinctness of the charge in each made against him, the particulars
as to these charges should be given to defendant so that he may
be prepared to meet them. People v. Bellows,
BLACKMAIL.
1. To show the crime specified in § 558 Penal Code, in relation to the
sending of letters with intent to extort money, etc., it is not need-
ful to prove that the threat was against the person to whom the
letter was sent or addressed, or that the writer or sender of the
letter was the one threatening to do the wrongful act. People v.
Thompson,
2. Nor is it needful that the threat should inspire fear or be calculated
to produce terror. The probable force or power of the threat is
immaterial. lb.
3. No precise words are needed to convey a threat. It may be done
by innuendo or suggestion. To ascertain whether a letter conveys
a threat, all its language together with the circumstances under
which it was written, and the relations between the parties, may
be considered, and if it can be found that the purpose and naturar
effect of the letter is to convey a threat, the mere form of words is
unimportant. lb.
4. In this case, defendant, a lawyer, had been engaged in the
prosecution of Julian Winnie, a son of complainant, before a justice
of the peace, on a criminal charge, and thereafter he sent to com-
plainant letters, purporting to be written from the district attor
ney's office, he having previously said to complainant that he was
deputy district attorney, in which letters, under the guise of
friendship, he represented as imminent the danger of some move-
ment to indict the son, and that he (defendant) had it in his power
to arrest the movement, and that the plan suggested would save
complainants and his folks "some trouble and expense as well as
the stink, and show that a friend in the right place is worth some-
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